CHIEF  POINTS  IN  THE  LAWS 


WAR  AND  NEUTRALITY, 


SEARCH  AND  BLOCKADE ; 


WITH 


THE  CHANGES    OF  1856,  AND   THOSE   NOW   PROPOSED. 


DT 

JOHN  FEASEE  MACQUEEN,  Esq., 

ONE   OF   HER  MAJESTY'S   COUNSEL. 

Author  of    "A  Practical  Treatise  on  the  Appellate  Jurisdiction  of  the  House  of  Lords  and  Privy 
Council,"   "The  Rights  and  Liabilities  of  Husband  and  \rifc,"    and  "A  Practical 
Treatise  on  the  Law  of  Marriage,  Divorce,  and  Legitimacy,  as  admin- 
istered in  the  Divorce  Cdurt  and  in  the  House  of  Lords." 


KICHMOND: 

W  EST     AND     JOHNSTON. 

1863. 


"Maritime  Law  iu  time  of  war  has  long  been  the  subject  of  dcjilora- 
V>lc  (Ii.«putes." — Declaration  <>/ the  Great  Pvicern  at  Paris,  April\&,  1850. 

"  Her  Majesty's  Government  wi.-<h  to  establish  a  doctrine  for  all  time." 
—  Eakl  RrsRKLL  to  the  American  Envoi/  E.rtraordiuarf/,  28th  Ainjitat, 
1861. 

"The  Declaration  of  Paris  in  1856  forms  a  new  era  in  International 
Law." — M.  IIaitekkiille. 

"  It  is  necessary  thiit  controverted  questions  of  neutrality,  contra- 
band, blockade,  and  privateering  sliould  be  disposed  of  speedily  and 
for  ever.'' — Examiner,  22(1  December,  ISGl. 


TO 


SIR  rou:n"dell  palmer,  m.  p., 

HER    majesty's    SOLICITOR-GENERAL, 

THESK 

^' CHIEF  points"  of  A  SCIENCE 

WHICH    HE    HAS    ADVANCED 

ARE   INSCRIBED. 


TABLE   OF  CONTENTS. 


Section  I. 

Belligerents  in  the  Enemy's  Country. 

PAGE 

1.  Principle  of  terror  in  ancient  wars 1 

2.  Leniency  and  foVbearance  now  enjoined 2 

3.  The  Duke  of  Wellington's  wise  practice 2 

4.  Count  Diebitsch's  example 2 

5.  Mr.  Burke's  benignant  doctrine 3 

6.  Italian  war  of  1859 3 

7.  Marshal   Brune's  remonstrance  against  destroying  the 

Dutch  dikes 3 

8.  Destruction  of  vines  and  fruit  trees  in  Afghanistan.  ...  4 

9.  Destruction  of  granaries  at  Odessa 4 

10.  Destruction  of  forts  and  stores 4 

11.  Charleston  stone  fleet 5 

1 2.  Louis  XIV  and  the  Eddystone  Lighthouse 5 

13.  Consideration  for  women  and  children 5 

14.  Prisoners  of  war 6 


Section  II. 

Belligerents  in  their  oivn  Country. 

ft 

1.  Defensive  destruction  of  property  by  Peter  the  Great.  .  7 

2.  By  the  Emperor  Alexander 7 

3.  By  William  the  Silent 7 

4.  By  Jacopo  del  Verme 8 

5.  Vindictive  destruction  of  property 8 

6.  Vindictive  closing  of  harbors 8 

7     Defence  of  mercantile  towns 9 

8.    Defence  of  fortified  towns 9 

A* 


VI  CONTENTS'. 

Section  III. 
Belligerents  at  Sea. 


PAGE 


1.  Capture  of  enemy's  property  a  duty 9 

2.  When  capture  impracticable,  destruction  enjoined 10 

8.    Marine  severities  vindicated  by  jurists 11 

4.  Opinion  of  Lord  Clarendon 11 

5.  Seizure  of  fishing-boats 12 

6.  Remarkable  ease  before  Lord  Stowell 12 

7.  Indulgence  to  fishermen  granted,  but  revoked 12 

8.  Humane  French  ordinance 14 


Section  IV. 
Belligerents  and  Neutrals. 

1.  The  war  must  be  "  regrular  " 14 

2.  Case  of  the  American  war  in  1 780 15 

3.  Division  into  belligerents  and  neutrals 16 

4.  Neutrals  must  hold  the  war  "  just  " 16 

5.  Asylum  to  belligerent  vessels 17 

6.  llules  as  to  their  departure 18 

7.  Great  duty  of  neutrals 18 

8.  Favor  shown  to  belligerents 18 

9.  Neutrals  must  not  assist 19 

10.  Neutrals  may  trade  with  belligerents,  but  restrictedly .  .    19 

11.  Justice  of  the  restriction  examined 20 

12.  That  fire-arms,  etc.,  prolong  war 20 

13.  This  position  examined 20 

14.  Opinion  of  David  Hume* 21 

*  Ojjinion  of  Captain  GulUver. 22 


Section  V. 
Search  for  Contraband  of  War,  etc. 

1.  The  Queen's  proclamation  as  to  contraband 22 

2.  Opinions   thereon    by    Lords    EUenborough,   Granville, 

and  Kingsdown 23 

3.  Provisions  deemed  contraband 23 


CO^TENTt?.  Vll 

PAGE 

4.  Medicinal  plants  contraband 24 

5.  Quasi-contraband  :  men,  dispatches,  etc,, 24 

6.  Lord  Stow  ell's  comprehensive  principle 24 

7.  Stoppage  and  search  for  contraband .  . . 25 

8.  Consequences  of  search  for  contraband 25 

9.  When  there  is  doubt  as  to  contraband 25 

10.  Sale  and  conveyance  of  contraband  not  an  offence  in 

the  neutral  state 25 

11.  Visit  to  ascertain  nationality 26 


Section  VI. 
Blockades. 

1.  Blockades 27 

2.  Their  principle  examined* 27 

3.  They  should  be  real 29 

4.  The  real  blockade  has  limits '. 30 

5.  Ought  blockades  to  be  abolished  V 30 

6.  Severe  penalties  for  the  breach  of  them 30 

7.  Essentials  of  blockade  in  the  present  day 32 

8.  Test  of  sufficiency 32 

9.  Intermissions  and  revivals  of  blockade 33 

10.  Blockades  without  captures 33 

11.  Would  blockades  without  captures  be  effective  ? 34 

*Note  as  to  the  Euman  Civil  Law. 


Section  VII. 
The  Prize  Jurisdiction. 

1.  Opinion  of  Lord  Stowell  in  1 799 35 

2.  His  opinion  in  1812 35 

3.  These  opinions  contrasted 37 

4.  The  Court  has  two  masters 37 

5.  Serious  consequence 37 

6.  Lord  Stowell's  position  difficult 38 

7.  Lord  Stowell  severe  on  neutrals 41 

8.  Lord  Stowell  indulgent  to  captors 41 


VI 11  CONTENTS. 


PAllE 

9.    Prize  money  awarded  to  captors 42 

U>.    Temptation  to  random  captures 43 

11.    Correction  of  Lord  Stowell's  law 43 


Sectiox  VIII. 

Late  Changes  in  (he  Maritime  Law  of  Nations. 

1.  The  Paris  Solemn  Declarations 44 

5.  How  far  they  bind 45 

3.  Privateering  abolished 46 

4.  Effect  on  America. 46 

5.  Enemy's  goods  safe  under  neutral  flag , 47 

6.  Lord  Derby's  apprehensions 49 

7.  Lord  Palmerston's  ijood  auguries 49 

8.  Case  put  by  Lord  Derby 50 

9.  Answer  by  Lord  Granville 50 

10.  Neutral  goods  safe  under  enemy's  flag 51 

11.  What  blockades  bind  by  the  Paris  declaration 51 

1 2.  Variance  by  the  Queen's  proclamation 51 


Section  IX. 
Proposed  Changes  in  the  Maritime  Law  of  Nations. 

1.  Ought  private  property  to  be  respected  at  sea  ?* 52 

2.  America  always  for  immunity 54 

3.  Opinion  of  Napoleon  1 55 

4.  Lord  Palmerston 56 

5.  What  the  policy  of  Great  Britain 57 

6.  Opinion  of  the  mercantile  body 58 

7.  Report  of  Commons'  Committee 58 

8.  Opinion  of  Earl  Russell 59 

9.  Conclusion 60 

*  Protocol  as  to  mediation  to  prevent  war 53 


CONTENTS.  IX 

Section  X. 

POSTSCEIPT. 

Showing  the  present  state  of  sentiment  in  the  House  of  Com- 
mons, as  to  securing  an  immunity  for  all  private  property  at 
sea,  during  hostilities. 

PAOE 

1.  Opinion  of  Mr.  Horsfall 61 

2.  the    Attorney-General G2 

3.  Mr.   Liddell G3 

4.  Mr.   B.  Cochrane 63 

5.  Sir  G.  Bowyer ; .  63 

G.                       G.  C.  Lewis 64 

7.  Mr.  Baring 65 

8.  Mr.    Lindsay G6 

9.  the  Lord  Advocate 67 

1 0.  Sir  S.  Northcote 6  7 

1 1 .  Mr.  Gower 69 

1 2.  Mr.  Cave 69 

1 3.  Sir  F.  Goldsmidt 69 

1 4.  Lord  IL  Vane 70 

15.  INlr.  Buxton 70 

1 6.  Mr.  Newdegatc 70 

,  1  7.                        Mr.  Massey 71 

1 8.  Mr.    Bentinck 72 

1 9.  Mr.  Bright 72 

20.  the   Solicitor-General 74 

21.  Mr.   Walpole 79 

22.  Lord  Palmerston 80 

23.  Mr.  Disraeli 81 


CONTENTS. 


APPENDIX 


PAGE 

The  Paris  Solemn  Declaration  of  April,  16,  1856 82 

The  Queen's  Proclamation,  13th  May,  1861 8-1 

Sir  Roundel!  Palmer's  Speech  on  the  Effect  of  the  Queen's 

Proclamation 87 

The  Queen's  Waiver  of  Right  on  the  Eve  of  the  Russian 

"War,  28th  March,  1854 92 

Sir  William  Molesworth's  Speech  on  the  Neutral  Flag 93 

Index 97 


CHIEF  POINTS  IN  THE  LAWS 

OK" 

WAR  AND  NEUTRALITY 

ETC. 


The  Law  of  I^Tations  during  wai'  has  many  ad- 
mirable propositions,  which  we  trust  will  never 
be  disturbed.  It  has  also  some  questionable  max- 
ims. These  last  must  be  examined  with  rever- 
ence, but  with  freedom. 

My  purpose  is  to  state  shortly  the  chief  points, 
to  put  forward  here  and  there  a  suggestion,  and 
to  leave  to  the  reader's  judgment  the  decision. 

I  begin  w^ith  the  rules  which  ought  to  govern 
belligerents  in  their  enem3^'s  country.  The  other 
divisions  will  be  taken  in  the  order  of  the  preced- 
ing table. 


S  E  C  T  I  0  N     L 

Belligerents  in  the  Enemu's  (huntnj. 

1.  In  ancient   times  an   invading  army,  to  in 
spire  terror,    souglit   the    earliest  oppor- 
tunity of  displaying   its  severity.      The  J'nor'inaJ 
slaughter  of  those  who  held  out  was  vin-  ^'^"'^^""• 
<licated  on  the  jxi'ound  that  destrovinic  one  o-arri 


2  r.r.lJ.KiKllKN  IS  IN   THE   KXKMY  S  COUNTRY. 

Hoii  without  iiRMvy  uiicrlit  prevent  others  from 
resistiiiir.  und  so  save  the  ettuRioii  ol"  hlood.  To 
this  sophistry.  Lord  Broughiini  tells  us,  the  an- 
swer is  obvious :  tor  that  ])V  the  same  reasoning 
war  might  he  j>roved  innocent  in  pro]>ortion  to 
its  crnelty.* 

2.  Vattel.   tlie  great  authority  of  the   last  cen- 

tury, enjoins  leniency  and  forbearance. 
f.XTranro"  ilc  dcnounccs  tlic  laying  waste  of  the 
no«  enjomt  .  j ).^|.^^| j^j^^^  \^y    Turcnnc.     And  the  truth 

is  that  cruelty,  pillage,  and  marauding,  though 
practised  largely  in  the  iirst  Napoleon's  wars, 
have  no  sanction  from  any  modern  jurist. 

3.  Our    illustrious   Duke    of  Wellington    pun^ 

ished  all  predatory  aggressions  commit- 
Tu^iiinSon-s  ted  by  bis  troops. f  He  made  them  pay 
xMso piai  ICO.  ^1^^^-^.  ^y.^y^  Tlic  protcctiou  of  thc  inhab- 
itants from  wanton  injury  he  considered  a  high 
duty,  and,  for  evident  reasons,  the  best  policy. 
The  French  more  than  once. felt,  to  their  cost,  the 
effects  of  an  opposite  line  of  conduct. 

4.  When    Count   Diebitsch   with    his    Russian 

army  entered  Roumelia,  in  1829,  he  gave 
iTchLcu-H  a  shining  example  of  military  clemency. 
rxump .-.  j^^  assured  the  Mussulmans  that  they 
should  be  safe  in  their  persons  and  property ;  and 
that  he  would  not  disturb  either  the  exercise  of 
their  religion,  or  the  course  of  their  civil  admin- 

*  England  and  Franco  under  House  of  Lancaster,  p.  206. 

-t  The  proof  of  this  is  everywhere;  but  chiefly  in  his  advances  into 
France,  in  spring  }><\4.  and  to  Paris,  in  July,  1815.  Sec  Sir  Archibald 
Alison '?  groat  work. 


BELLIGERENTS    IN    THE    ENEMY'S    COUNTRY.  3 

istratioii ;  but  lie  required  them  to  deliver  up 
their  arms,  as  a  deposit,  to  be  restored  on  the 
return  of  peace. 

5.  The  conduct  of  this  humane  Russian  com- 
mander harmonizes  witli  a  benignant 
doctrine  stated  by  an  illustrious  writer:  UnisSant^ 
"Upon  the  taking  of  a  town,  or  the  sub- 
jection of  a  province,  it  is  usual  among  civilized 
nations  to  afford  protection  and  full  security  to 
the  inhabitants ;  and  such  of  them  as  do  not 
choose  to  live  under  the  new  government  are 
allowed  a  reasonable  time  to  dispose  of  their 
lands  and  effects,  and   to  depart   in  all  safety."* 

6.  In  the  Italian  war  of  1859,   remarkable  for 
the  enormous  bodies  of  troops  assembled, 

^  Italian  war 

"we  are  told  that  the  two  hostile  armies    of  isoo, 
passed  over  the  richest  plains  in  Europe,  leaving 
behind  them  little  trace  of  their  presence,  except 
on  the  actual  battle-fields. "f 

7.  Marshal  Brune,  a  jurist,  and  a  man  of  litera- 
ture before  he  became  a  soldier,  stated  to  ,,    .  , 
the  Duke  of  York,  in  1799,  during  an  ,^;:;"'^;',.^,;/; 
armistice  in  Holland,   "that  if  the  duke  '^Sllv^^^^^^ 
should  cause  the  dikes  to  be  destroyed,   »"^'^»'"i'»^«8- 
and  the  country  to  be  inundated,  when  not  use- 
ful to  his  own  army  or  detrimental  to  the  enemy's, 
it  would  be  contrary  to  the  laws  of  war,  and  must 
draw  upon  Kim  the  reprobation  of  all  Europe. "{ 

*  Dodsley's  Annual  Register,  1772,  p.  37,  drawn  up  by  Mr.  Burke. 
t  See   an    able    pamphlet  on    '*  Maritime    Capture,   by    a    Lawyer," 
Ridgway,  1862. 
X  1  Kent's  C'uium.  92. 


4  BELLIGERENTS    IX    THE    ENEMY  S    COUNTRY. 

Tlie  proposed  exploit,  if  the  story  be  true,  was  in 
imitation  of  Louis  XIV's  accom]>lis]ie(l  one,  which 
procured  for  that  king,  as  Voltaire  says,  the  "de- 
plorable glory  of  having  destroyed  one  of  the 
master-pieces  of  human  industry." 

8.  The  destruction  of  the  vines  and  fruit-trees 

in  Afghanistan,  a  serious  injury  to  that 
ofTiiVosan"  country  without  any  corresponding  ben- 
in"Afiiian-     ofit  to  thc  iuvadcrs,  was  undoubtedly  a 

l)reac]i  of  the  laws  of  war. 

9.  In    bombarding    Odessa,    the    English    and 

French  powers  did  their  best  to  save 
.^fTranaVil"  tlic  grauaHCs,  uot  mcrcly  from  consid- 
erations of  humanity,  but  also  from  a 
regard  to  the  law  of  nations:  every  country  in 
Europe  deriving  benefit  from  those  stores.  This 
ground  was  expressly  taken  by  the  Emperor 
Nicholas,  when  he  complained  tliat  factories, 
wareliouses,  and  shops  had  ])een  destroyed. 

10.  We  can  understand  why  private  property, 

instruments  of  husbandry,  and  every  ar- 
of  fortBa'nd    ticle  of  a  pcaccful  character,  and  more 

especially,  why  churches,  temples,  libra- 
ries, pictures,  statues,  and  public  monuments  are 
invariably  spared  in  war.  But  liow  as  to  fortified 
places  and  military  stores?  The  case  of  Almeida 
raises  tliis  question.  There  General  Brienne,  liav- 
ing  determined  to  cut  his  way  through  the  British 
besieging  forces,  determined  also,  as  a  prelimi- 
nary, to  destroy  tlie  fortress,  witli  all  its  military 
stores.  This  double  operation  he  executed  with 
an    ability    and    success   commetided   by    Colonel 


BELLIGERENTS    IN    THE    ENEMY  S    COUNTRY.  O 

ISTapier.*  But  General  Sarrazin,  in  his  history 
of  the  Spanish  campaign,  expresses  an  opinion 
that  the  destruction  of  the  fort  and  stores  of 
Ahneida  was  a  viohxtion  of  the  laws  of  war.  We 
should  have  thought  that  it  was  a  laudable 
achievement,  otherwise  it  would  seem  that  the 
common  practice  of  spiking  artillery  is  inde- 
fensible. 

11.  But  what  shall  we  say  as  to  the  late  opera- 
tion at  Charleston?  The  Stone  Fleet,  if  chariosh.n 
intended  to  be  a  permanent  impediment  «to"«fl'^et. 
to  commerce,  may  justly  be  regarded  as  a  world- 
wide injury,  and  consequently  a  breach  of  the  law 
of  nations. 

12.  During  Queen  Anne's  wars  a  French  priva- 
teer  seized   the  workmen    employed   in   lq^j^xiv 
erecting   Rudyerd's   Lighthouse   on    the  ^ddystone 
Eddystone  Rock,  and  carried  them  oif  as  Lighthouse. 
prisoners;    but   Louis  XIV  immediately  ordered 
their  release,  bestowed  on  them  presents,  and  sent 
them  back  to  their  duty,  declaring  that  "although 
he  was  at  war  with  En  Hand  he  ..was  not  at  war 
with  mankind." 

13.  Dr.  Phillimoret  tells  us  that  at  Sebastopol 
"the  Enirlish  jj^eneral  refused  to  abstain     „    ., 
from  firing  upon  a  particular  quarter  said     IvomoiTand 
to  be  inliabitcd  by  women  and  children,     •^'^''•''«"- 
but    he  offered    them  a  free  passage  beyond    tlic 
lines  of  the  army." 

*  See  Napier's  Peninsular  War.  f  Int.  Law,  vol.  iii,  p.  1 12. 


6  BELLIGERENT?    IN    THE    ENEMYV    COINTRY. 

14.  Tlio  old  rule  was  that  prisonerR  of  war  be- 
Pruoners  caniG  tlic  slavGS  ot'  tliG  victoi%  who  liad 
of  war.  ^ii^  power  of  life  and  death.  At  Rome 
the  more  distiiiiruished  were  reserved  for  the 
triumph,  and  l)utc'hered  afterward.  Contrary 
cases  are  mentioned  as  wonders.  In  tlie  days  of 
cliivah'y  the  hope  of  ransom  ah)ne  caused  quarter 
to  be  given.*  Tlie  vanquished  Sultan  Bajazet 
was  carried  about  in  a  cage.f  Bynkerslioek,  the 
great  jurist,  writing  not  far  I'rom  our  own  time, 
defends  the  lianging  of  prisoners.  But  in  mod- 
ern warfare  between  Christian  nations  mercy  is 
sliown,  and  everything  done  to  soften  the  mishap 
of  a  brave  enemy.  Tins  ap})ears  on  both  sides 
in  the  Crimean  contest.  At  the  battle  of  8ol- 
ferino,  the  Emperor  of  the  French  gave  orders 
that  the  wounded  Austrians  should  be  treated 
precisely  as  if  they  were  his  own  soldiers. 

♦See  Henri/  V,  Act.  iv,  scene  4,  where  Pistol  exacts  "egregious 
ransom,"  under  the  last  penalty. 

f  The  disputed  cruelty  of  Timour  —  a  savage  and  an  infidel  —  was 
surpassed  by  the  authentic  and  more  recent  cruelty  of  a  renowned 
Christiiin  prince,  Bedford,  the  brother  of  Henry  V,  under  whoso  aus- 
pices Joan  of  Arc — a  prisoner  of  war  in  the  truest  sense  of  the  phrase 
— was  exhibited  to  the  populace  in  an  iron  cage  on  her  way  to  Rouen, 
where  she  was  burnt  alive.  The  story  is  too  shocking  to  read.  The 
excuse  is  that  Joan  was  considered  a  sorceress.  Lord  Brougham,  in 
the  excellent  l)ook  already  cited,  shows  that  the  French  were  more  to 
blame  in  this  allair  tliaii  the  English;   pp.  221  to  2U7. 


BELLIGERENTS    IN    THEIR    OWN   COUNTRY.  7 

Section   II. 
Belligerents  in  their  own  Country. 

1.  Let  us  next  inquire,  how  far  during  war  is  a 
government  entitled  to  destroy,  or  niuti- 

late  its  own  terntory,  and  the  property  of    destruction 

of  uronprtv 

individuals  thereon?     Yattel  thinks  that     by  i*»'ter 

-  .  the  Great. 

even   here  there  is  a  limit.*     He   is   of 
opinion  that  the  policy  of  Peter  the  Great,  who 
laid  waste  eighty  leagues  of  his  empire  in  order  to 
arrest  the  progress  of  Charles  XII,  could  he  justi- 
fied hy  nothing  short  of  an  imperious  necessity. 

2.  So,  on  the  French  jurist's  authority,  we  may 
lay  it  down  that  the  course  taken  by  Al- 
exander required  the  like  excuse,  when     i)erorAk"x- 
he  made  a  desert,  and  fired  Moscow  for 

the  reception  of  Kapoleon.  Such  violent  reme- 
dies, even  though  defensive,  are  not  often  to  be 
resorted  to.  Vattel  holds  that  a  prince  who  with- 
out the  strongest  grounds  should  imitate  the  ex- 
ami)le  of  Peter  the  Great,  would  be  justly  culpa- 
ble in  the  eyes  of  his  own  countrymen.  Whether 
other  nations  might  complain  he  docs  not  say. 

3.  In  1573  William  the  Silent  cut  the  dikes 
round  Lcyden,  then  besieged  by  the  By  wiiuam 
Spaniards.  The  land  was  laid  under  *''*'  '^"'■"^• 
water,  and  the  crops  were  swallowed  up.  It  was 
an  extreme  step,  but  justified  by  necessity  and  by 
success.  The  tide  destroyed  the  besieging  army, 
and  brought  up  tlie  Zealand  fieet  laden  with  pro- 

*Lib.  3,  c.  9,  g  167. 


8  BELLIGERENTS    IN   THEIR    OWN   COUNTRY. 

visions  for  t]ie  limnshinu;  inluibitants.     Thus  Lev- 
den  was  saved. 

4.  [N^early  two  centuries  before,  when  tlie  du- 
Ry  .Tac.po  ties  of  bellitj^eren ts  in  their  own  country 
di-iAornu-.  yyQY^^  \q^q  uudcrstood,  or  less  attended  to 
tlian  in  the  days  of  William  the  Silent,  Jacopo 
del  Verme,  ai)parently  w^ithout  necessity,  and 
certainly  without  success,  cut  the  dikes  of  the 
Adige,  in  the  hope  of  destroying  tlie  Florentine 
arni}',  commanded  by  Sir  John  llawkwood ;  but 
that  skilful  leader  eltected  a  retreat,  without  ma- 
terial loss,  leaving  the  Milanese  to  deplore  their 
useless  sacrifice  of  territory.* 

5.  An   injury   to  ourselves  may  be   an    injury 

to    others.      If,    when    the   Ensilish    and 

Vindictive  '  °  , 

(K'stiiiction     J  rench  bombarded  Odessa,  the  Russians 

of  propeity. 

had  vindictively  destroyed  its  corn-mag- 
azines, a  question  might  have  arisen  whether  such 
an  act  was  not  contrary  to  the  laws  of  war. 

6.  Suppose  a  dangerous  sea-coast,  extended 
,,.  ,.  .        hundreds  of  miles,  with  only  one  har- 

Vindictive  "^ 

closing  of     |)or.     Are  we  to  entertain  a  doubt  that 

harbors. 

the  world  at  large  has  a  right  to  exact 
the  benefit  of  that  harbor?  The  owners  of  the 
soil  have  but  a  qualified  property  in  it.  This  ex- 
treme case  tries  the  principle,  and  shows  its  irre- 
sistible authority.  We  cannot  always  do  what 
we  will  with  our  own. 

7.  To  defend  an  unfortified  mercantile  town, 


*  Poggio  Bracciolini,  Ilist.  Florent. ;  Sismondi,  Hist,  Rep.  Ital. 


BELLIGERENTS   AT    SEA.  9 

completely  invested   by  the  enemy,  has 

^  "^  111  V  Defence  of 

been  held  a  breach  ot  the  laws  or  war,     me.eautiio 

towns. 

because  such  a  case  is  one  for  honorable 
surrender — to  prevent  useless  carnage  and  the  un- 
availing destruction  of  property. 

8.    On   the   30th   August,    1759,   the   Austrian 
forces,    havins:  finally    established    their 

.  1       -T^         1  Defonce  of 

batteries    around    I3reshiu,    sent   a   mes-     fortified 

.  towns. 

sage  to  Count  Tavenzien,  who  com- 
manded the  town,  reminding  him  that  as  it  was 
a  mercantile  place,  not  a  fortress,  he  could  not 
defend  it  without  contravening  the  laws  of  war. 
The  count,  in  the  character  of  a  military  juris- 
consult, admitted  the  law,  but  denied  the  fact; 
affirming  that  "Breslau,  being  surrounded  by 
military  w^orks  and  wet  ditches,  was  a  place  of 
strength,  and  not  merely  a  mercantile  town.* 
lie  therefore  called  upon  the  Austrians  to  do 
their  worst. 


Section  III. 

Belligerents  at  Sea. 

1.  We  should  liave  expected  that  the  liumane 
and  just  principles  applied    to  property     c^^,^^,^  ^{ 
on  land  would  also  be  applied  to  prop-     l'Z\ll\'^\ 
erty   at   sea.      But  this   is   not  so.      On      ''*  ''"'^'• 
the  contrar}^  all  property,  public  or  private,  be- 
longing to  the   enemy,  if  found    in    an   enemy's 

*  Dodsloy's  Anuual  Register,  17G0,  p.  IS,  drawn  up  l»y  Mr.  Rurkc. 


10  BELLIGERENTS    AT    SEA. 

sliip  at  sea,  or  in  port  atloat,  is  liablo  to  capture. 
In  otiier  words,  wliat  is  proliiltitod  on  lar.d  is  per- 
fectlv  all()\val)le,  and  is  in  hict  prescribed  as  a  du- 
ty, at  sea.* 

li.    Rnt  even  at  sea  we  are   not  to  appropriate 

or  to  destroy  the  enemy's  i)ro]torty,  hrcri 

ture  ini-        mdnu :    there    must   be    an    ad  udication. 

prHcticuMe.  _       _  ^  ^ 

ii.stiuctiuii  Hence,  it  is  a  viohition  of  tlie  maritime 
code  to  burn  merchant  sliips  instead  of 
taking  them  to  a  prize  court.  At  the  same  time 
it  is  to  be  remembered  tliat  the  captors  may  not 
always  be  aide  to  take  the  ship  into  port.  In 
such  a  case,  Lord  Stowell  said  that  the  "captors 
could  not,  consistently  with  their  general  duty  to 
their  own  country,  or  indeed  its  exjjress  injunc- 
tions, permit  enem^-'s  property  to  sail  away  un- 
molested—  if  impossible  to  bring  in,  their  next 
duty  is  to  destroy  it."t  There  are  other  authorities 
to  the  same  effect.  Indeed,  Dr.  Lushington,  in 
"The  Leucade,"J  lays  it  down  that  "the  destruc- 
tion of  a  vessel  under  hostile  coloi's  is  a  matter  of 
duty;"  and  that  "the  bringing  of  an  enemy's  ves- 
sel to  adjudication  is  not  called  for  by  any  respect 
to  the  right  of  the  enemy  proprietor." 

3.  Still,  the  question  remain* — on  what  princi- 

*"  The  iiH)ffi'n.sivc  incrcanfilc  mariners  navigating  the  vessel,  and 
all  others  on  board  (being  of  the  hostile  nation),  are  on  capture  of 
the  ship  made  prisoners  of  war,  and,  if  necessary,  put  under  hatches. 
Soniitiines  they  are  haiidcuficd  ;  but  it  is  not  usual  (according  to  the 
mildness  of  modern  practice)  to  put  tliem  in  irons,  though  on  a  late 
occasion  this  was  done. 

t2  Dodson,  381. 

X  2  Spinks  Ecc.  &  Adm.  2;il. 


BELLIGERENTS   AT    SEA.  11 

pie  of  justice  is  tlie  property  of  peaceful  ^i,„.i„e 
merchants  liable  to  capture  at  sea,  while  S'icaTed 
the  very  same  property,  beloniriiig  to  the  ^•vj""^^*'- 
very  same  individuals,  if  found  on  land,  would  be 
treated  with  forbearance?  The  jurists  do  not  ex- 
plain why  this  sliould  be.  Chancellor  Kent*  tells 
us  "that  there  is  a  marked  difference  in  the  rights 
of  war  carried  on  by  land  and  by  sea;"  adding 
that  "the  object  of  a  maritime  war  is  the  destruc- 
tion of  the  enemy's  commerce  and  ruivigation,  in 
order  to  weaken  and  destroy  the  foundation  of  his 
naval  power;"  but  that  "the  nsage  is  not  to  touch 
property  on  land  without  making  compensation." 
lie  assigns  no  reason  for  the  distinction.  It  is 
scarcely  a  satisfactory  solution  to  say  that  the 
general  use  of  maritime  insurance  casts  losses  at 
sea  on  those  who  by  contract  are  bound  to  sustain 
them. 

4.  An  eminent  statesman, f  after  observing  that 
"by  land  we  should  think  it  disgraceful 

i«    1    ^  Ojiiiiion   of 

to  seize  the  property  ot  peacetul  persons,  loki  ciar- 
even  subjects  ot  the  enemy,  adverts  to 
the  difference  of  the  rule  at  sea,  and  declares  that 
there  is  no  assignable  reason  for  tlie  distinction, 
"except,  perhaps,  that  acts  committed  at  sea  are 
less  under  observation  than  those  committed  on 
land  ;  and  the  force  of  opinion  is,  consequently, 
less  brought  to  bear  on  the  former." 


*  Vol.  i.  p.  107.  See  also  "Whoaton's  EUnuiit.^^,  p.  420,  and  Ifannard, 
14  July,  1S57.  where  Lord  John  Rnssell  8n.v.«,  "the  comparison  be- 
tween private  property  in  ships  and  jirivate  property  on  land  is  not 
tenable." 

fLord  Clarendon.— //<»/)«<!/•«/,  22d  May,  ls5C. 


12  BELLIGERENTS    AT    SEA. 

5.  ^NTot  only  is  it  the  practice  to  capture  and 
Seizure  of  condemn  as  lawful  prize  the  enemy's 
fisiiiiig-boats.  nierchantmen  and  cargoes,  but  during 
our  later  wars  with  France  and  Holland  we  con- 
descended to  humbler  booty:  for  we  seized  the 
boats  of  French  and  Dutch  fishermen,  who  plied 
their  precarious  industry  upon  our  coasts,  and  we 
treated  them  exactly  as  if  they  were  prosecuting, 
not  a  harmless  and  useful,  but  a  criminal  occupa- 
tion. 

6.  Lord  Stowell  seems  to  hav^e  pronounced 
Remark-  judgmcut  witli  but  little  satisfaction  in 
beforeLord  ^  ^^^^  ^^^  ^^^^  descHption  which  came 
stowell.  before  the  prize  court  on  the  13th  No- 
vember, 1798.  A  small  fishing-vessel  having 
been  captured  by  British  cruisers  on  her  return 
from  the  Dogger  Bank  to  Holland  with  a  cargo  of 
cod,  his  lordship  delivered  the  following  opinion — 

"  In  former  wars  it  has  not  been  usual  to  mike  captures  of 
these  small  fishing- vessels;  but  this  was  a  rule  of  comity  only, 
and  not  of  legal  decision ;  it  has  prevailed  from  views  of  mu- 
tual accommodation  between  neijjhborin'jj  countries,  and  from 
tenderness  to  a  poor  and  industrious  order  of  people.  In  the 
present  war  there  has,  I  presume,  been  suffi.'ient  reason  for 
changing  this  mode  of  treatment ;  and  as  they  arc  brought  be- 
fore me  for  my  judgment,  they  must  be  referred  to  the  general 
principles  of  this  court ;  they  fall  under  the  character  and  de- 
scription of  ships  constantly  and  exclusively  employed  in  the 
enemy's  trade." — Condemnation. 

7.  It  would  appear  that  shortly  after  the  above 
Tndiii-ence  dccisiou  (and  possibly  through  the  inter- 
gra^'tea.'but  vention  of  Lord  Stowell)  some  indul- 
revoked.       gencc  was  vouchsafed  to  the  French  fish- 


BELLIGERENTS    AT    SEA.  13 

ermcii ;  but  it  also  appeal's  that  from  tliis  indul- 
gence evil  consequences  arose,  or  vvei'e  su[)posed 
to  have  arisen.  Belsham  gives  the  following  ac- 
count*— 

"  On  the  21st  of  January,  1801,  Mr.  Secretary  Dnndas  ap- 
prised the  Lords  of  the  Admiralty  that  it  was  his  majesty's 
pleasure  to  revoke  the  indulgence  granted  to  the  French  fish- 
ermen ;  and  that  they  and  their  boats  shouhi  be  henceforth  sub- 
ject to  capture — advices  having  been  received  that  these  fisher- 
men were  under  requisition,  and  that  even  those  who  had  been 
released  from  prison,  in  order  to  be  sent  home,  on  the  express 
condition  of  not  serving  again,  were  com])i'ised  in 
that  requisition.     It  was  his  majesty's  further  pleas-     Fisiiermen 

1  11      1  I'l  1     •  11  loleasod  on 

ure  tiiat  all  those  set  at  liberty  on  their  parole  be     parole. 
required  to  return  into  this  country  ;  and  that  those 
among  them  who  shall  neglect  to  obey  these  orders  shall   be 
made  to  suffer  all  the  rigors  of  the  laws  of  war,  in  case  they 
should  again  be  made  prisoners  while  serving   the  enemies  of 
his  majesty.     M.   Otto,  on   the  29th  of  January,  immediately 
apprised   M.  Talleyrand  of  this   measure,  the  true  motives  of 
which  he  declared  himself  unable  to  conjecture ;    at  the  same 
time  expressing  his  fears  that,  from  the  intentional  delay  in  the 
communication  of  the  order,  a  great  number  of  unfortunate  per- 
sons must  have  fallen  victims  to  it.     M.  Otto  also  addressed  a 
reply  to  the  British  government,  deprecating  '  a  measure  hostile 
to  a  peaceable  class  of  people,  for  the  most  part,  aged,  invalids, 
or  children,  who  were  consequently  incapable  of  hurting   the 
enemies  of  their  country;   and  whose  simplicity  of  manners  and 
industrious  habits  could  not  give  any  umbrage.'      This  act  of 
provocation   awakened    the    highest    resentHient   in 
the  First  Consul,  who  sent  instructions  to  M.  Otto     TudiKnation 
to   declare    to   the    isritisli    government,    that    tlie     Consul. 
French  government,  could  not,  on  its  part,  think  of 
making  the  poor  fishermen  victims  of  the  prolongation  of  hos- 
tility, and  therefore,  that  it  would  abstain  from  reprisals,  having 

*llist.  of  Eng.,  vol.  xii,  p.  169. 


14  BELLIGERENTS   AND    NEUTRALS. 

griven  orders  that  all  French  ships,  armed  for  war  or  cruising, 
should  leave  the  occupation  of  fishermen  undisturbed." 

8.  It    is   remarkable    that   a  French   ordinance 

issued  so  far  back  as  1543  2:ave  protec- 

French         tion  to  jishemien   dnrmo^  hostilities.     It 

onlinancc.  _  ^        "^  ^ 

was  obe^^ed  till  the  time  of  Louis  XIV, 
but  afterward  fell  into  disuse,  owing  to  the  ill- 
faith  exhibited,  as  Valin  affirms,  "by  the  enemies 
of  France."  The  ancient  and  excellent  ordinance 
thus  neglected  may  now^  perhaps  be  regarded  as 
the  germ  of  a  better  policy;  though,  when  we 
look  at  the  date  of  it,  we  may  be  apt  to  think 
that  the  world  does  not  always  advance  in  hu- 
manity as  it  advances  in  civilization. 


Section   IV. 

Belligerents  and  Neutrals. 

1.  The  war  must  be  what  is  called  in  the  lan- 
ffuaffe  of  international  law  a  reqular  war. 

The  war  ?  ,         -, 

must  he  It  mav  be  between  two  separate  states, 
by  the  sovereign  authority  ot  each;  or  it 
may  be  between  one  portion  of  a  state  and 
another  portion  of  the  same  state.  Suppose  a 
rebellion,  or  a  clamor  for  secession.  Let  us 
take  rebellion  first.  It  involves  a  civil  war.  Of 
this  nature  was  the  revolt  of  tlie  low  countries 
against  Spain,  three  centuries  ago.  No  one  dis- 
puted that  the  most  cruel  of  all  contests  wdiich 
then  ensued  between  sovereign  and  subject  was 
orthodox,  so  far  as  neutrals  were  concerned,  how- 


BELLIGERENTS    AND    NEUTRALS.  15 

ever  much  it  violated  the  municipal  code.  It  was 
not  for  the  world  at  large  to  await  the  recognition 
of  the  tyrannical  Philip.*  Then  as  to  secession. 
The  attempt  may  be  illegal.  The  actors  may  be 
traitors.  But  at  a  necessary  period  the  law  of 
nations  will  step  in  to  define  and  to  tix  the  rights 
and  duties  of  the  belligerents  relatively  to  neu- 
trals. At  all  events,  we  must  hold  that  ever 
since  the  date  of  Queen  Victoria's  proclamationf 
the  unhappy  civil  war  now  raging  in  America 
has  been  regular.  The  Federal  government  itself, 
both  by  conduct  and  by  direct  appeal,  has  in- 
voked tlie  law  of  nations,  which,  where  it  prop- 
erly applies,  must  be  accepted  by  all;  but  it  does 
not  follow  that  the  municipal  relations  are  dis- 
placed as  between  the  belligerents.  The  South- 
ern insurgents  may  be  rebels,  and  may  continue 
rebels,  till  their  rebellion  has  succeeded  or  has 
been  suppressed. 

2.  After  describin<>:  Lord  Cornwallis'   severities 
in    South   Carolina,    Mr.    Massey   savsij 

"  C<ase  of  the 

"The   American    insurgents,    once   they  Ameiican 

^  ''      war  ill  1780. 

had  been  admitted  to  the  privileges  of 
civilized  warfare,  could  no  longer  be  dealt  with 
as  rebels."  This  proposition,  though  just  and 
generous,  seems  doubtful  in  point  of  law.  It  was 
not  until  subsequently  to  the  South  Carolina  se- 
verities that  the  American  conflict  received,  from 
the   King's   speech,    opening   Parliament   in   No- 


*  Lord  Brougham's  Political  Philosophy,  vol.  iii,  375. 

t  13th  May,  1861.  +  Hist,  of  Geo.  Ill,  vol.  iii,  26. 


16  BELLIGERENTS    AND    NEUTRALS. 

vember,  1780,  the  title  of  "a  war."  Prior  to  that 
speech,  it  was  a  rebellion;  and  it  was  so  studi- 
ously described  and  treated  by  the  British  gov- 
ernment. The  present  American  insurgents  were 
pronounced  rebels  by  the  Secretary-at-War  in  the 
House  of  Commons,  on  the  11th  of  March,  1862. 
What  the  law  is,  is  one  thing.  It  is  a  very  differ- 
ent consideration  whether  its  penalties  should  be 
enforced.  Upon  the  question  of  policy  and  hu- 
manity, all  must  agree  with  Mr.  Massey.  But  let 
us  not  forget  that  although  the  rebellion  of  1745 
had  every  mark  of  civilization,  especially  on  the 
part  of  the  vanquished,  the  chief  of  them  were 
executed  on  Tower  Hill  for  their  treason. 

3.  Supposing  the  war  to  be  regular,  the  law  of 

nations  divides  mankind  into  two  classes, 

Division  into     1,1.  ,  ^  .        ,  .  i    -r^ 

belligerents  t^elligercnts  SLUQ.  ucutrals.  A  and  B  are 
belligerents,  at  war  with  each  other.  All 
the  other  letters  of  the  alphabet  are  bystanders, 
that  is  to  say,  neutrals,  looking  on,  but  taking  no 
part  in  the  fray. 

4.  It  is  a  maxim  that  so  long  as  the  established 

rules  are  observed,  the  war,  being  regu- 
n.uVho'id  the  lar,    must    in    the   eyes   of   neutrals   be 

deemed  a  just  war,  which  the  jurists 
rather  oddly  explain  to  mean  just  on  both  sides.* 

*  "  Les  guerres  doivent  etre  reputees  justes  de  la  part  des  deux 
bclligerants." — Hautefeuille,  De>s  Droits  et  den  Deroirs  des  Nations 
Ncutrcs,  lit.  3,  chap.  1.  8.  2,  vol.  1,  l.'iS,  2do  edit.  Vattel  says,  "La 
guerre  en  forme,  quant  a  ses  f^ffets,  doit  etre  regnrdee  coriime  juste  de  part 
et  d'autre." — B.  3,  c.  12,  ^  190.  Vattel  says  "this  is  absolutely  neces- 
sary." But  it  would  rather  appear  to  be  a  superfluous  refinement.  In 
another  place  Vattel  aflirms  with  great  truth  that  "  a  war  cannot  be  just 
on  both  sides." — B.  3,  c.  3,  jJ  39. 


BELLIGEllENTS    AND    NEUTRALS.  17 

They  are  not  satisfied  with  saying  that  neufrals 
have  nothins:  to  do  with  the  merits  of  the  bellio^- 
erents'  qnarrel.  The  jurists  insist  that  neutrals 
shall  blindly  "accept  the  facts  without  discussing 
them."  We  know,  however,  from  recent  obser- 
vation, that  neutrals  disregard  this  injunction. 
They  never  do  accept  the  facts  without  discussing 
them.  On  the  contrar^^  they  examine  the  facts 
critically,  discuss  them  copiously,  and  form  their 
opinions  upon  them  freely.  But  it  does  not  fol- 
low that  because  they  may  deem  the  war  unjust, 
or  absurd,  they  are  on  that  account  to  interfere 
and  put  an  end  to  it.  They  have  no  high  duty 
to  perform.  They  may  look  on  with  composure. 
It  is  enough  that  they  submit  patiently  to  the 
humiliations  and  disadvantages  which,  as  will 
appear  by  and  by,  are  abundantly  cast  upon  them 
by  the  maritime  law  of  nations. 

5.  Neutral  nations    usually  give  an   asylum  in 
their  ports  to  the  ships  of  both  belliger- 
ents ;    and  we  have   seen   this   done  re-     boiiigeient 
cently  under  circumstances  which  might, 
perhaps,  have  justified  a  refusal  of  the  favor. 

To  grant  such  an  asylum  to  one  belligerent,  and 
refuse  it  to  another,  would  be,  to  use  the  language 
of  the  jurists,  unneutral.  The  belligerents  have 
no  right  to  ask  the  benefit  of  neutral  ports,  or 
roadsteads ;  but  in  the  case  of  storms,  or  pressure 
of  any  kind,  to  deny  refuge  would  be  unchar- 
itable and  unchristian  ;  and  there  is  authority  for 
holding  that  it  would  be  contrary  to  the  law  of 
nations. 


18  BELLIGERENTS   AND   NEUTRALS. 

6".  When  two  vessels,  hostile  to  each  other, 
meet  in  a  neutral  port,  or  when  one  pur- 
t()"ufeT?  sues  the  other  into  a  neutral  port,  they 
epar  me.  ^^^^^^^  heliave  themselves  peaceably  while 
there.  Should  one  of  them  sail  awa}^,  the  other 
must  not  follow  until  after  twenty-tour  hours  have 
elapsed.  One  object  of  this  re2:ulation  is  to  pre- 
vent au}^  reasonable  chance  of  collision  upon  the 
coast. 

7.  In  time  of  Avar,  the  great  study  of  surround- 
n  ,.  ,  f„     iuGT  nations  is  to  abstain  dilio^ently  from 

Great  duty  >^  o  ./ 

of  neutrals.  f|()j,jg  anything  that  may  interrupt  the 
proceeding  of  the  combatants.  However  great 
the  inconvenience,  the  rule  is  that  states  not  en- 
gaged in  the  conflict  shall  permit  it  to  proceed 
without  impediment,  without  remonstrance,  and 
without  complaint.  Courtesy  so  elevated  and  so 
reflned  does  not  exist  in  private  life;  for,  when  we 
see  two  men  lighting  in  the  street,  our  flrst  im- 
pulse is  to  separate  them,  especially  if  the  match 
be  unequal.  Should  they  resist  our  importunities, 
and  by  persevering  stop  the  thoroughfare,  we  call 
in  the  police,  who  at  once  take  charge  of  the 
ofllenders. 

8.  To  these  simple  dictates  of  reason  and  jus- 

tice  the    law    of  nations,  as   now  cstab- 
t<Xiiige1-"  lished,  does  not  accede.*     That  law  ac- 
cords  to    belligerents   certain    rights,  or 
rather   high   privileges,   uniformly  vexatious  and 

*  It  may,  perhaps,  be  doubted  whether,  in  the  case  of  small,  insignifi- 
cant states,  the  rule  of  private  life  would  not  be  applied.  Great  states 
have  license — or  take  it. 


BELLIGERENTS    AND    NEUTRALS.  19 

often  deeply  mischievous  to  neutrals,  whose  only 
remedy  is  submissio!i.  Belligerents  are,  in  fact, 
favorites  of  the  maritime  law,  which  seems  to 
frown  on  all  who  are  at  peace  with  their  fellow 
men.  Why,  or  how,  this  should  he,  is  not  easy 
to  exphiin  satisfactorily.  The  doctrine  arose  in 
remote  and  barbarous  ages;  but  our  chief  diffi- 
culty is  to  understand  how,  with  all  its  oppressive 
incidents,  it  has  been  so  long  accjfliiesced  in.  "Let 
us  inquire,"  says  a  distinguished  modern  jurist, 
"what  is  the  nature  of  this  exorbitant  right  of  bel- 
ligerents? For  what  purpose  has  it  been  created? 
and  what  are  its  proper  limitations?" 

9.  The  law  requires  that  neutrals  shall  not  assist 
either   of  the  belligerents.     If  they  do, 

,  '  111  Neutrals 

they  cease   to   be   neutrals,  and   become        nmstnot 

.".,  f^-.,   .      .  -.  ,  assist. 

principals.     This  is  reasonable. 

10.  Neutrals,  however,  are  not  interdicted  from 
trading   wdth    belligerents.      They    may 

'^.  ,      .  '~"  ..■.."  .    ,      Neutrals  may 

maintain  their  commercial  relations  with  tra.uwith 

.  .    ,  .    ,  belligerents, 

A  and  B ;    in  other  words,  with  either,  but  restrict- 

.  .       edly. 

or  with  both  of  the  belligerents.  This 
being  so,  suppose  a  merchant,  in  the  ordinary 
course  of  his  business,  transmits  arms  and  ammu- 
nition to  A.  This  will  be  a  hazardous  adventure; 
for  arms  and  ammunition  so  sent  to  A  may  injure 
B,  and  therefore  it  is  open  to  B,  as  the  law 
stands,  to  capture  and  confiscate  both  the  ship 
and  the  cargo.  So,  in  like  manner,  let  us  suppose 
that  the  same  merchant,  in  the  same  course  of 
business,  sends  arms  and  ammunition  to  the  op- 
posite belligerent,  B.  Here  it  will  be  com})etent 
2 


20  BKLLir.KRKNTS    AND    NKUTRALS. 

to  A  (ns  it  was  in  the  other  case  to  B)  to  capture 
and  confiscate  both  the  ship  and  the  cargo. 

11.  But  is  it  not  a  fair  question  for  considera- 

tion, whetlicr  an  act  performed  in  tlie 
mstriction      orQinarv,  legitimate  course  oi  commerce 

examined.  *  %   i         i  i  i  i  ^  v 

can  reasonably  be  deemed  a  breach  ot 
neutrality?  The  merchant  pursues  his  hiwful  avo- 
cation. Regardless  of  the  war,  he  looks  only  to 
liis  profits.  Tlie  belligerents,  in  his  eyes,  are  cus- 
tomers, and  he  hopes  they  are  solvent.  lie  deals 
indifierently  with  A,  or  with  B,  or  with  both,  in 
the  systematic  prosecution  of  his  honorable  call- 
ing. If  one  belligerent  derives  more  benefit  from 
commerce  than  another,  it  is  because  his  resources 
are  greater,  and  not  because  neutrality  has  been 
violated.  Ilis  superiority  in  this  respect  is  a  source 
of  strength,  and  an  element  of  success,  which  the 
other  belligerent  ought  to  have  considered  before 
entering  on  the  contest. 

12.  The  jurists,  however,  take  another  ground. 

They  afiirni  that  supplies  of  arms  and 
arms, etc.,      ammuiiitioii  pi'oloug  tlic  war;  a  mischief 

prolong  war.  ....  i'*"^!!  •  ii 

wiiicli  IS  not  obviated,  bat  increased,  b}^ 
accommodating  both  parties  alike. 

13.  IN'oNV,    is    it   quite  certain    that   supplies  of 

arms    and    ammunition    have    really   the 

This  position  "^ 

examined,  effcct  of  leiiii-theni  11  Of  the  contest?  Are 
they  not  more  likely  to  abridge  it?  What  is  the 
best  recommendation  of  our  modern  improve- 
ments in  gunnery,  and  of  the  general  advance 
which  has  recently  been  made  in  the  military  art? 
Beyond  all  question,  this — that  they  accelerate  the 


BELLIGERENTS    AND    NEUTRALS.  21 

result,  and,  on  the  whole,  diminish  the  sacrifice  of 
human  life.  Sir  William  Armstrong  is  a  public 
benefactor,  and  has  been  rewarded  as  such.  The 
Minie  rifle,  which  kills  at  a  thousand  yards,  is  a 
meritorious  invention.  If  "we  had  had  only  bows 
and  arrows  and  battering  rams  in  the  Crimea, 
when  would  Sebastopol  have  been  t*ken  ?  One 
of  our  wars  with  France  lasted  a  hundred  years. 
This  could  hardly  have  happened  had  the  true 
capabrlities  of  lire-arms,  especially  of  artillery, 
been  then  understood.* 

14.  The  most  sagacious  of  historians,  Mr. 
Hume,t  remarks  that  artillery,  "though 
it  seems  contrived  for  the  destruction  David " 
of  mankind,  has  in  the  issue  rendered 
war  much  less  bloody,  for  by  its  means  nations 
have  been  brought  more  to  a  level,"  and  peaceful 
consummations  are  more  rapidly  accomplished. 
This  great  writer  commends  as  a  social  improve- 
ment the  happy  invention  of  gunpowder,  war's 
first    instrument,    but    the    most    powerful   of  all 


*  The  above  sujrgestions  are  well  supported  V>y  the  Stnudard  of  4th 
February,  1S02,  in  the  following  pointed  scntonecs:  "Napoleon  over- 
ran Italy  in  a  month,  and  conquered  Prussia  in  a  week.  The  Duke  of 
Wellington  marched  out  of  Portugal  on  May  22,  1S13;  fought  the  bat- 
tle of  Vittoria  on  June  21;  and  before  the  end  of  the  month  there  was 
not  a  Frenchman  left  in  Spain.  So  there  were  but  three  months  from 
Elba  to  Waterloo.  Napoleon  III  met  the  Austrians  first  at  Magenta, 
on  June  'i,  1850,  and  finished  the  campjiign  at  Solferino  in  less  than  a 
month."  What,  then,  becomes  of  the  jurists'  assertion  that  "  arms 
anil  ammunition  prolong  the  war?"' 

t  Hist.  vol.  ii,  4G6. 


22  SEARCH  FOR  CONTRABAND  OF  WAR,  ETC. 

agents  in  hastening  its  termination.*  The  rea- 
soning of  the  jii lists,  therefore,  on  this  funda- 
mental point,  proceeds  on  a  dehatahle  basis,  and 
calls  for  further  examination.  That  reasoning, 
whether  right  or  wrong  (I  otter  no  opinion  either 
way),  is  unquestionably  the  parent  of  the  cele- 
brated doctrine  called  "contraband  of  war;"  a 
doctrine  which  will  be  considered  in  the  next 
section,  and  to  which,  by  recent  and  coming 
events,  great  interest  has  been  imparted.    * 


Section   Y. 
Search  for  Contraband  of  War^  etc. 
1.  The  Queen's  proclamationf  as  to  contraband 
Tiie  Queen's    ^^  ^^'^*'  ^^'^^  ^'^''  ^^^  objcct,  uot  to  guarautcc 
Kl'"ontm"  evenhandedness  to  the  belligerents,  but 
band.  ^^  keep  out  of  trouble  her  own  people. 

It  warns  her  majesty's  loving  subjects  that  they 
abstain  from 

"  Carrying  oflicers,  soldiers,  dispatches,  arms,  military  stores, 

*  The  efficacy  of   gunpowder,  as  a  pacificator,  is  more   powerfully 

described   by   Captain   Gulliver  than  by  any  other  writer. 

Opinion  of       j^  i,,,   advice  to   the  King  of  Brobdignag,  he  says:    "I 

Gulliver.  told   his    niiijesty   that  I  knew  the  ingredients  very  well, 

and  the  manner  of  compounding  them;  and  that  I  could 

direct  Uis  workmen  how  to  make  hollow  tubes  of  brass  or  iron,  of  a 

size  proportionable  to  all  other  things  in  his  majesty's  kingdom,  and 

the  largest  need  not  be  above  a  hundred  feet  long  ;  twenty  or  thirty  of 

which  tubes,  charged  with  the  proper  quantity  of  powder  and  balls, 

would  batter  down    the  walls  of  the  strongest  town  in  a  few  hourx." 

The  king,  whom  the  captain  describes  as  narrow-minded,  rejected  this 

proposal. 

t  Infra,  91. 


SEARCH  FOR  CONTRABAND  OF  WAR,  ETC.  23 

or  materials,  or  any  article  or  articles  considered  and  deemed  to 
be  contraband  of  war  according  to  the  law  or  modern  usage  of 
nations,  for  the  use  or  service  of  either  of  the  said  contending 
parties." 

2.  On  the  16th  of  May,  1861,  the  following  re- 
marks fell  from  the  peers  in  Parliament — 

Opinions 

Lord  Ellenborough :  "I  regret  to  sec  so  much  Li^iT'Ei^ien- 
vaofueness  in  the  expressions  used  as  to  contraband    t*"'""??'!- 

•-  *^  Grniiville, 

of  war.  How  are  plain  men  to  find  out  what  articles  ati.i  Kings- 
hare  of  late  been  so  considered  by  the  usage  of 
nations?  Wliat  are  the  further  articles  not  mentioned?  The 
law  with  respect  to  contraband  of  war  is  in  a  state  of  constant 
change.  I  recollect  to  have  found  in  the  law-books  of  best  au- 
thority, that  all  these  changes  were  controlled  by  one  prevailing 
principle,  namely,  that  that  is  contraband  which,  in  the  .posses- 
sion of  an  enemy,  would  enable  him  better  to  carry  on  the  war." 

Earl  Granville  :  "  The  government  has  followed  the  usual 
course.  Contraband  of  war  must  vary  according  to  the  char- 
acter of  the  war.  The  decisions  of  a  prize  court,  unless  there 
has  been  a  flagrant  violation  of  international  law,  all  those  who 
have  recognized  the  rights  of  the  belligerents  must  accept." 

Lord  Kingsdown  :  "  The  determination  of  what  is  contraband 
must  depend  on  the  circumstances  of  each  particular  case.  Pro- 
visions, if  sent  to  a  port  where  an  army  is  in  want  of  food,  mi<Tht 
become  contraband." 

3.  We  know  that  England  detained  neutral 
vessels  going  to  France  with  corn,  meal, 

dn  1  ,1  .•     1  Provisions 

ilour,    because    these   articles   were   deemp.i 

eminently  calculated  to  avert  starvation. 

"The   situation   of  France  was   such    as  to   lead 

to    that   mode  of   distressing   her;"  so    said    Mr. 

Ilanimond  on  hehalf  of  the  British  government, 

in  1703. 

4.  It  is   diflicult   to   believe,   what  however   is 


24  SEARCH  FOR  CONTRABAND  OF  WAR,  ETC. 

asserted,  that  in  the  exercise  of  our  bel- 
pbt'nts  CMii-     liferent   rights  we    "endeavored   to    de- 

trnband. 

prive  the  enemy  s  hospitals  of  one  of 
the  most  healing  plants  which  Providence  has 
bestowed  on  sutferino;  mortals."* 

5.  Besides  contraband  proper,  there  are  cases 
Qnasi-cnntni-  ^^  ^^f^cisi-co\\\.Yiihiim\,  a})plicable  to  persons 
(iispatches,     ^lid  dispatches.     Both  are  subject  to  the 

same  discretionary  principle,  leaving  it 
very  much,  if  not  entirely,  for  the  judge  to  decide 
what  does  and  what  does  not  involve  the  legal 
penalty.f 

6.  "It  will  be  sufficient,"  says  Lord  Stowell, 
Lord  stow-  "  ^^'  there  is  an  injury  arising  to  the  bel- 
prchJi'isrvo  ligerent  from  the  employment  in  which 
principle.  ^|^^  vcsscl  is  fouud.  The  master  may  be 
ignorant  and  perfectly  innocent.  But  if  the  ser- 
vice is  injurious,  that  will  be  sufficient  to  give  the 
belligerent  a  right  to  prevent  the  thing  from 
being  done. "J  This  a  foreign  jurist  calls  the  ad 
libitum    doctrine.      The    declaration   of    1856,    to 

*  Edinb.  Rev.  of  1812. 

'f  See  Dr.  Pratt's  valuable  treatise  on  Contraband  of  War;  and  Mr. 
C.  Clark's  disquisition  on  the  Trent  case. 

J  6  Rob.  4.S0.  It  is  not  clear  that  the  above  are  detached  dicta.  But 
if  they  are,  they  aru  Lord  Stowell's.  He  revised  his  judgments,  first 
in  manuscript  and  afterward  repeatedly  in  print.  The  reports  in  fact 
are  not  the  reporter's,  but  the  judge's.  Even  wlien  at  the  bar,  Lord 
Stowell  began  with  written  speeches.  Everything  he  delivered  had  a 
literary  finish.  In  the  decisions  of  this  judge,  no  hasty  dicta  are  to  be 
found.  See  Rush.  Sec.  Ser.,  vol.  i,  15.  The  decisions  of  Lord  Stowell 
are  not  in  every  hand  ;  but  the  best  of  them  are  given  by  Mr.  Tudor  in 
his  Leading  Cases  on  Mercantile  and  Mjiritiuie  Law.  See,  also,  the 
Manual  of  Maritipie  Warfare,  by  Messrs.  Hazlitt  and  Roche. 


SEARCH  FOR  CONTRABAND  OF  WAR,  ETC.  25 

which  we  will  advert  hereafter,*  does  not  define 
contrahand  of  war. 

7.  That  declaration  is  also  silent  as  to  the  rights 
of  stoppage t    and    of  search.     The    bel- 

1 .  ,        ",  n  ,        '  ,^  Stoppac;e  and 

liferent,  thereiore,  must  either  renounce  seaniifor 

O  >  '  111 

,  .     ^  111  1      1    •        coiitiabaiHl. 

tliese  rights,  or  humble  every  neutral  snip 
by  their  exercise;  for  without  stoppage,  and  with- 
out search,  he  cannot  ascertain  wliether  the  neu- 
tral has,  or  has  not  contraband  on  board. 

8.  When    the    bellio;erent   finds  contraband  on 
board,  he  will    of  course  take  the   ship 

,  -  -  .  .      ,    Consequences 

into    port;    but   he    must    bear   in    mind  of  soaicii  for 

-rio(  luT  ••  •  liL   contraband. 

Lord  btowell  s  humane  injunction,  "not 
to  handcuff  the  crew,  or  put  them  in  irons,  except 
in  extreme  cases."J     If  he  find  no  contraband,  he 
permits  the  ship  to  proceed  on  her  voyage. 

9.  Suppose  the  result  of  the  search  to  inspire  a 
doubt:  in  that  case  the  belligerent  com- 

^  ,  .  ,  .,  .,,     When    thero 

mander,  havine^  a  duty  to  pertorm,  will  iedoubtasto 

^  .  .  ,         ,  contraband. 

reserve  the  doubt  lor  the  judge,  and  take 
the  neutral  vessel  into  port. 

10.  In  every  belligerent  state  the  conveyance  to 
the  enemy  of  contraband  articles  is  treat-  5;,,ie  and  con- 
ed as  a  delinquincy.     But  it  is   not  so  ecTt'Sind 
regarded  in  the  neutral  state.     Thus,  not-  hl'lhrneut'lal 


state. 


withstanding  the  Queen's  proclamation, 
a  British  merchant  may  now  lawfully  sell  contra- 
band articles  to  an  American  purchaser;  nay,  he 

*  Tufra,  45,  89. 

t  The  approved  mode  of  stoppage  is  by  cannon  phot — le  coup  dc  can- 
non de  semonce. 

+  The  San  Juan  Bjiptista.  5  Rob.  33:  The  Die  Five  Darner,  ib.  .367. 


26  SEARCH  FOR  COXTRABAND  OF  WAR,  ETC. 

may  even  cany  tliem  to  Xew  York  or  to  Charles- 
ton, if  lie  cliooses  to  run  the  risk  of  seizure  in 
iransiiu,* 

11.  In  the  hist  number  of  the  "Edinburgh  Re- 

view,"t  there  is  an  able  and  candid  arti- 
tainua'trjnai-  cle  ou    "  belliii^erents 'aiul   neutrals."     It 

advises  the  retention  of  the  ''right  of 
visitation  on  the  high  seas  to  ascertain  the  true 
national  character  of  mercantile  ships."  This  is 
quite  distinct  from  the  right  of  search  for  contra- 
band ;  although  the  mode  of  proceeding  is  the 
same.     The  reviewer  thus  describes  it — 

"The.  visit  is  made  by  an  officer  in  uniform,  who  proceeds 
peaceably  to  the  merchant  vessel  in  a  boat  manned  by  two  or 
three  men  besides  the  rowers,  and  retires  when  his  lawful  in- 
(juiries  are  satisfied." 

The  writer  next  observes  that  what  is  done  is 
"analogous  to  the  production  of  a  passport  by 
travellers  on  the  Continent;"  but — to  omit  the 
considerations  which  have  brouglit  passports  some- 
what into  disfavor  lately  —  it  must  be  remembered 
that  the  exaction  of  them  assumes  sovereignty. 
There  is  no  sovereign  on  the  high  seas. 


*  See  all  this  admirably  explained  in  Sir  Roundell  Palmer's  speech, 
of  the  20th  of  February,  1862,  hifrii,  p.  94. 
"{"  January,  J  862. 


BLOCKADES.  '  27 

Section    VI. 
Blockades. 

1.  Superior  in  rank  to  the  right  of  stoppage  on 
tlie  higli  seas  is  the  riglit  of  blockading 
an  enemy  s  port  —  the  most  singular  or 
the  bellii^rerents'  many  startlino:  preroo-atives.  This 
operation  is  performed  and  maintained  without  the 
slightest  regard  to  the  injury  which  may  thereby 
be  occasioned  to  neutrals,  the  great  object  being 
to  cut  otf  all  communication  between  those  who 
are  within  and  those  who  are  without  the  place 
beset.  Access  and  egress  are  equally  deemed  of- 
fences: not  wrongs,  but  crimes.  A  blockade  is 
said  to  be  "an  act  of  sovereignty,"  though  why 
it  shouhl  be  so  specially  is  not  explained.  It  is 
also  called  "a  conquest."  But  it  may  be  asked 
whether  it  is  not  rather  an  act  of  forcible  occupa- 
tion—  a  trespass,  precarious  in  tenure,  and  tran- 
sient in  duration  ;  in  truth,  without  anything  to 
justify  it  but  power.  Be  this,  however,  as  it  may, 
the  Queen's  proclamation*  charges  and  commands 
her  loving  subjects  that  they  abstain  from 

"Breaking  or  endeavoring  to  break  any  block- 
ade lawfully  and  actually  established  by  or  on 
behalf  of  either  of  the  said  contending  parties." 

2.  The  doctrines   of  blockade,    even    with   the 
restrictions   which   have  been   put  upon 
them,    illustrate    remarkably   the   indul-     cipl^ex""' 
gence  and  partiality  exhibited  by  inter 

*  In/ra,  p.  84. 

3 


exam- 
ined 


28  ^  BLOCKADES. 

national  maritime  law  in  favor  of  bellii^erents  at 
the  expense  of  neutrals.  Two  states  have  a  per- 
fect ri<j:ht  to  go  to  war  with  each  other  on  a  i)oint 
the  most  frivolous  imaginable.  But  are  the}', 
or  is  either  of  them,  entitled  to  inflict  injury,  or 
even  serious  inconvenience  on  the  rest  of  man- 
kind, who  desire  to  be  at  peace?  That  important 
question  is  not  discussed  by  the  jurists.  Yet  it  is 
one  very  lit  for  consideration.  And  here  we  will 
enlist  the  aid  of  an  admirable  text,  usually,  but 
erroneously  attributed  to  the  Roman  civil  law — 
a  law  which  has  but  little  in  common  with  tlie 
existing  code  of  nations.*  Sic  iitere  tuo,  ut  alienum 
non  Icedas,  which  ma}^  be  thus  interpreted:  So  con- 
duct your  war  as  to  inflict  no  damage  on  your 
peaceful  neighbors.  jS^ow,  what  is  the  effect  of  a 
blockade?  Doubtless,  to  injure  the  enemy;  and 
80  far,  all  is  fair  and  right.  But  suppose  it  ruins 
the  trade   of  third  parties:    suppose   it   to  bring 


*  Those  who  know  the  civil  law  need  not  be  told  that  it  is  purely 
municipal.      The   modern    code    of  nations    considers    all 

Note  as  to  the   states  as  equal.     The  Romans  admitted  no  equals.     Their 

Koiuan  Civil      ...  i.-        >,  *  •    i  *•         i       t    ^  ii    j 

Lj^^  jus  gentium      was  not  international.     Jjet  any  one  find  a 

word  about  belligerent  as  contradistinguisljed  from  neutral 

rights  in  the  civil  Liw;   or  anything  about  searches  for  contraband,  or 

breaches  of  blockade.     The  Romans,  indeed,  had  a  fecial   college  as 

old  as  Numa  Pompilius.     It  ruled  forms  and  ceremonies,  but  had  little 

to  do  with  justice  or   humanity.     Julius   Csosar,   famed   for  clemency, 

murdered    his    prisoners  of  war.      The   Iro(iuois    Indians   ate   theirs ; 

though,  as  Montesquieu  says,  they  sent  and  received  ambassadors.     It 

was  the  dismemberment  of  the  Roman  empire  and  the  establishment 

of  Christianity,  fully  developed,  that  gave  birth   tardily  to  the  law  of 

nations.    It  is  the  opinion  of  M.  llautofouillo  that  injudicious  attempts 

to    import    Roman    law    into   the   international,  have   done    harm,   the 

principles  of  the  two  systems  being  essentially  different.    What  is  good 


BLOCKADES.  29 

starvation  on  millions  of  industrious  individuals 
who  have  nothing  to  do  with  the  contest  but  to 
deplore  it,  and  pray  for  its  cessation.  May  it  not 
be  doubted  whether  a  system  which  produces  the 
consequences  now  felt  in  England  and  France  is 
not  wrong  at  the  foundation?  And  may  it  not 
also  be  a  question  whether  there  is  not  a  time 
when  submission  ceases  to  be  a  duty,  and  resist- 
ance becomes  a  virtue  ?  That  time,  however,  we 
are  authorized  by  high  opinions  to  state,  has  not 
yet  arrived.* 

3.  But  to  resume  our  exposition.  The  block- 
ade, to  be  binding,  must  be  real,  and  rp,,yy  g,^^,,^ 
there  must  be  notice  of  it,  so  that  all  to  ^^'"^'^^ 
be  affected  may  be  upon  their  guard.  The  im- 
pediment, too,  must  be  b}^  ships  of  w^ar,  placed  in 
such  juxtaposition  as  to  enable  them  to  constitute 
an  insuperable  barrier.  It  is  said  that  privateers 
cannot  perform   or  assist  in  this  work ;    though 

iu  the  Romau  law  is  inapplicable;  what  is  bad  has  done  mischief.  If 
Lord  Stowcll,  who  made  so  many  prize  rulings,  once  cites  a  text  from 
the  corpus  jririn  civilis,  on  a  point  of  international  law,  our  memory 
fails.  The  Rhodians  were  the  true  parents  of  miiritime  law.  Their 
rules,  however,  were  not  international,  but  municipal,  and  as  such  were 
adopted  by  Augustus  and  Antoninus.  The  truth  is  that  the  idea  of  a 
code  of  nations  was  suggested  by  the  remarkable  confederation  of  the 
Gcrmjin  principalities  and  the  league  of  free  towns,  formerly  estab- 
lished in  ditfercnt  parts  of  Europe  for  purposes  of  mutual  protection. 
See  Lord  Brougham's  Pol.  Phil.,  vol.  ii,  p.  491  ;  llallam's  Middle  Ages, 
vol.  ii,  p.  140.  Vattel,  in  his  preface,  avers  that  Hdbbes  was  "  the  first 
who  gave  a  distinct,  but  yet  imperfect  idea  of  the  law  of  nations;" 
and  this  is  perhaps  the  reason  why  the  descendant  and  editor  of  that 
philosopher  made  the  very  able  speech  which  will  be  found  rn/rn,  p.  93. 
*  Debate  in  the  House  of  Commons,  March  7,  1862;  and  sec,  espe- 
cially, Sir  Roundcll  Palmer's  speech,  published  \\y  Ridgway. 


30  BLOCKADES. 

wliy  does  not  appear,  or  at  all  events  does  not 
appear  ration  all}'. 

From  these  premises  it  follows  that  what  is 
called  a  paper  blockade — that  is  to  say,  a  block- 
ade bj  mere  proclamation,  without  ships,  or  with 
but  an  inadequate  force  of  ships — is  entitled  to  no 
deference  from  neutrals.  This  doctrine  received 
the  sanction  of  the  Paris  Congress  in  1856,* 

4.  Then  does  it  follow  that  a  real  blockade  is 

harmless?  On  the  contrary,  the  more 
bilK-k-iTe       impassable   the   barrier   the   greater   the 

hardsliip  on  innocent  sufferers.  But  a 
real  blockade  has  limits,  which  a  paper  one  has 
not.  The  real  blockade  cannot  range  over  three 
thousand  miles  of  coast.  It  injures  neutrals  in- 
deed ;  but  it  does  not  insult  their  understanding. 

5.  It  may   be  said   that   to  abolish    blockades 

would  be  a  hardship  upon  belligerents, 
acyji'to'br   But    may   it    not   be    answered    that   to 

continue  blockades  would  be  a  greater 
hardship  upon  neutrals?  Who  are  the  most  en- 
titled to  favor — the  bulk  of  mankind,  who  are 
at  peace,  or  the  small,  ill-conditioned  portion 
who  fight  for  an  idea?  Even  supposing  war  to 
be  a  necessary  evil,  the  struggle  should  be  to 
make  its  mischiefs  as  small  as  possible  to  those 
not  engaged  in  it. 

6.  Breaches  of  blockade  are  in  the  prize  court 
Severe  pen-  tTcatcd  as  deliuquencics,  which  bring  in- 
uie'breach  ^o  rcquisitiou  tlic  Criminal  vocabulary, 
of  them.       Formerly   imprisonment  or  other  corpo- 


••■  See  ill  fro,  pp.  6]  iind  8;5. 


BLOCKADES.  31 

ral  correction,  sometimey  even  death  itself,*  was 
inflicted  upon  offenders.  The  modern  usage  has 
confined  the  penalty  to  confiscation  of  ship  and 
goods.  If  a  vessel  lias  contracted  gnilt  h}^  a 
breach  of  blockade,  the  offence  is  not  discharged 
till  the  end  of  her  vovaa-e.  But  when  the  block- 
ade  itself  ceases,  the  delictum  ceases.  Such  is 
the  law  as  administered  in  Eno-land;  and  Mr. 
Justice  Story  lays  down  the  same  doctrine  for 
America.f  The  decisions  for  breaches  of  block- 
ade, though  falling  short  of  ancient  severity,  are 
still  well  fitted  to  secure  obedience.  Thus,  for 
example,  it  is  held  that  the  mere  sailing^for  a 
blockaded  port,  knowing  it  to  be  blockaded,  is 
a  breach  of  the  blockade,  b}^  reason  of  the  crim- 
inal intent,  which,  though  unexecuted,  involves 
condemnation. J 

Lord  Stowell  appears  to  have  considered  the 
breach  of  a  blockade  an  act  of  deep  turpitude. 
But  it  may  be  doubted  whether  it  would  be  uni- 
versally so  regarded  in  the  present  day.  Some 
might  now  think  it  a  meritorious  achievement, 
legitimate  in  object,  and  not  the  less  entitled  to 
commendation  because  daring  in  execution.  For, 
although  a  breach  of  blockade  is  dealt  with  as  a 
delinquency  in  the  blockading  state,  it  is  not  so 
regarded  in  the  neutral  state.  The  Queen's  proc- 
lamation seems  to  be  but  little  more  than  an  ad- 
monition to  her  loving  subjects,  and  all  who  look 
up  to  her  for  protection. § 

♦Manning,  319.  f  Crant-h,  p.  440.  %  1  Robinson,  154. 

g  See  Sir  RoundcU  Palmer's  speech  of  Uie  2(Uli  of  Fehriiary,  1862, 
iiifiit,  p.  87. 


32  BLOCKADES. 

7.  In  tlie  late  dicussioii*  the  solicitor-general 
V     fnia      made  the  followino:   remarks    as   to  the 

Essentials  o 

f.^»i!™.'!"    essentials  of  a  blockade,  havini):  rci^jard 

111    III"  JiiL  O"  '  d?  d' 

eut  day.        ^^  luodem  cliangcs  arising  from  the  use 
of  steam,  and  other  causes. 

The  blockade,  says  Sir  Ronndcll  *  ralmer,t 
must  be 

"  A  bona  fide  blockade,  by  a  force  sufficient  to  maintain  it  on 
the  spot;  and  there  must  also  be  a  sulhc-ient  notification  of  some 
kind  or  other  of  that  blockade.  These  are  the  two  principles. 
AVhatever  may  be  found  in  some  writers,  not  now  of  recent 
date,  it  is  perfectly  clear  that  we  have  no  exact  technical  defi- 
nition of  what  constitutes  such  a  sufficient  force.  You  cannot 
a  priori  lay  down  what  particular  number  of  frigates  or  other 
ships-of-war  shall  be  an  adequate  force  in  any  hypothetical 
case.  The  improvements  in  modern  warfare,  the  introduction 
of  steam,  or  any  other  similar  change,  may  have  made  suffi- 
cient or  insufficient  now  means  of  blockade  which  were  not 
so  before." 

8.  The  solicitor-general,  on  the  same  occasion, 
Testofsuffl-  furnished  the  following  test,  whereby  to 
ciency.  ^^  ^j^^  sufficieiicy  of  a  blockade.!  He 
said — 

"  What,  from  the  beginning  of  this  century,  has  been  laid 
down  as  the  test  in  this  matter  ?  Why,  in  the  first  place,  that 
of  '  evident  danger;'  and  then,  that  due  credit  must  be  given  to 
the  judgment  of  the  naval  officers  intrusted  with  the  execution 
of  the  service." 

9.  So,  again,  as  to  the  intermissions  of  block- 

■*  In  the  House  of  Commons,  on  the  7th  of  March,  1862. 
f  Speech  of  7th  of  March,  18')2,  published  by  Ridgway. 
t  Ibid. 


BLOCKADES.  33 

ade,  some  inconvenieut  doctrines  are  cor- 
rected by  the  solicitor-general  in  the  fol-  and  livivais' 

-  .  of  blockade. 

lowing  passage* — 

"  After  a  blockade  has  been  intermitted,  it  may  be  resumed ; 
and  when  it  is  resumed,  as  soon  as  persons  have  knowledge  of 
the  fact,  whether  by  format  notification  o^  the  renewal  or  other- 
wise, it  becomes  as  binding  again,  so  far  as  those  persons  are 
concerned,  as  if  it  had  not  been  intermitted.  It  is  only  during 
the  period  of  intermission,  or  as  to  ships  which  come  in,  or 
intended  to  come  in,  daring  the  period  of  intermission,  or  which 
may  be  affected  with  notice  of  the  original  blockade  only,  and 
not  of  the  renewal,  that  the  fact  of  intermission  has  any  effect." 

'  10.  Blockades,  like  war  itself,  seem  to  be  a 
necessity.  For  this  reason  it  would  be 
desirable,  if  it  were  practicable,  to  render  without 
them  less  noxious  to  neutrals.  What  is 
blockade  ?  Let  us  look  at  the  plain  import  of  the 
word.  Lord  Chancellor  Westbury  encourages  us. 
lie  lately  resolved,  with  the  concurrence  of  the 
other  law  peers,  a  most  difficult  point  in  the 
House  of  Lords,  very  much  bj^  the  aid  of  ety- 
mology ;  which,  learnedly  and  wisely  applied, 
will  often  clear  obscurities,  and  bring  us  back  to 
the  good  sense  of  a  perverted  institution.  Lord 
Campbell,  on  the  bench,  made  many  appeals  to 
Dr.  Johnson.  Xow,  that  great  authority  tells  us 
that  the  blockade  is  simply  "to  shut  up  by  ob- 
struction." The  lexicographer  says  nothing  of 
seizures  or  confiscations ;  because  these  and  the 
many  harsh  maxims  which  attend  them  have 
nothing  to  do  with  blockade  in  its  primitive  and 
true  acceptation. 

»  Speech  of  7th  March,  1802,  published  by  Ridgway. 


34  BLOCKADES. 

When  the  first  blockader  invested  a  phice,  he 
warned  off  all  neutral  merchantmen.  lie  "shut 
them  out  I)}'  obstruction."  But  it  is  not  clear 
that  he  made  prizes. 

11.  We  conceive  (speaking  without  experience, 
MCi.M  block-  I'^ving  never  seen'a  blockade,)  that  seiz- 
captiires'be"^  urcs  aud  coufiscatlous  are  scarcely  worth 
ftiective?  ^i^g  trouble,  the  ex[)ense,  and  the  odium 
they  occasion.  W^hether  blockades  without  cap- 
tures would  prove  eliective  may  be  a  question. 
But  this  is  to  be  remembered — the  taking  of  cap- 
tured ships  into  port  for  adjudication  is  often  a 
tedious  and  difficult,  and  sometimes  a  perilous 
operation,  which  must  always  more  or  less  occa- 
sion a  diminution  of  the  blockading  power, 
scarcely  compensated  by  the  spoil  of  neutral 
property,  which  rewards  the  men  employed.* 

How  far  this  mode  of  remunerating  her  maj- 
esty's navy  is  suited  to  the  dignity  of  a  great 
nation,  and  how  far  it  comes  up  to  the  require- 
ments of  an  enlightened  age,  and  an  advanced 
civilization,  seem  to  be  topics  not  unfit  for  the 
consideration  of  the  legislature. 

^  See  infra,  42. 


THE    PRIZE    JURISDICTION.  35 

Section   VII. 
The  Prize  Jurisdiction. 

1.  Describing  tlie  catholic  character  of  the  prize 
jurisdiction,  Lord  Stowell,  at  the  close  of  ^^^.^^.^^^^  ,^f 
the  last  century,  thus  expressed  himself —  JhTtJcJ;'*'''*'" 

"  It  is  the  duty  of  the  judge  to  administer  that  justice  which 
the  law  of  nations  holds  out  without  distinction  to  independent 
states,  some  happening  to  be  neutral,  and  some  to  be  belligerent. 
The  seat  of  judicial  authority  is  indeed  locally  here,  in  the  bel- 
ligerent country;  but  the  law  itself  has  no  locality.  The  person 
who  sits  here  is  to  determine  this  question  exactly  as  he  would 
determine  the  same  question  if  sitting  at  Stockholm :  asserting 
no  pretensions  on  the  part  of  Great  Britain  that  he  would  not 
allow  to  Sweden."* 

2.  So  said  Lord  Stowell  in  1799.  Seven  years 
afterward,  France,  with  hardly  a  man-of-    „.     .  . 

'  '  »/  His  opinion 

war  at  sea,  declared  England  and  her  col-  i"^^i-^- 
onies  in  a  state  of  blockade;  and  Eni2:land  retorted 
by  her  orders  in  council,  whereby  she  declared 
that  France  and  her  allies,  as  well  as  her  colonies, 
were  in  the  same  predicament.  Of  course  all 
neutral  nations  suffered  incalculably.  They  com- 
plained that  they  were  made  the  victims  of  a 
double  blockade  unexampled  in  its  range,  yet 
composed  almost  entirely  of  paper,  and  having 
not  a  leg  to  stand  upon  in  the  shape  of  precedent 
or  authority  in  the  law  of  nations.  They  pro- 
tested without  effect.     England  o!i  the  one  hand. 


*  1  Rob.  350. 


36  THE    PRIZE   JURISDICTION. 

and  the  "French  Ruler,"  as  he  was  called,  on  the 
other,  were  too  much  for  the  rest  of  Europe.  Still, 
the  neutral  traders  had  one  consolation.  They 
called  to  mind  the  court  which  "had  its  seat 
locally  here,  hut  which  was  hound  to  administer  a 
law  which  had  no  locality."  In  answer  to  their 
appeal,  Lord  Stowell  "delivered  himself  with  a 
power  of  language  which  never  forsook  him,  and 
which  might  have  convinced  any  person  except 
the  suffering  parties  to  whom  it  was  addressed." 
Said  this  great  magistrate,  of  whom  the  courts  of 
Doctors'  Commons  may  well  be  proud — 

"  It  is  strictly  true  that  the  king  in  council  possesses  legisla- 
tive powers  over  this  court,  and  may  issue  orders  and  instruc- 
tions which  it  is  bound  to  obey  and  enforce :  and  these  constitute 
the  written  law  of  this  court.  These  two  propositions,  that  the 
court  is  bound  to  administer  the  law  of  nations,  and  that  it  is 
bound  to  enforce  the  king's  orders  in  council,  are  not  at  all  in- 
consistent with  each  other.  The  constitution  of  this  court  rela- 
tively to  the  legislative  power  of  the  king  in  council,  is  analogous 
to  that  of  the  courts  of  common  law  relatively  to  that  of  the  par- 
liament of  this  kingdom.  Those  courts  have  their  unwritten 
law,  the  approved  principles  of  natural  reason  and  justice;  they 
have  likewise  the  written  or  statute  law  in  acts  of  parliament, 
which  are  directory  applications  of  the  same  princijiles  to  par- 
ticular subjects.  What  would  be  the  duty  of  the  individuals 
who  preside  in  those  courts,  if  reqxiired  to  enforce  an  act  of 
parliament  which  contradicted  those  principles,  is  a  question 
which  I  presume  they  would  not  entertain  a  priori.  In  like 
manner,  this  court  will  not  let  itself  loose  into  speculations  as  to 
what  would  be  its  duty  under  such  an  emergency,  because  it 
cannot,  without  extreme  indecency,  presume  that  any  such 
emergency  will  happen." 

3.  The  discerning  reader  will  perhaps  recognize 


THE    PRIZE**JURTSDICTION.  37 

tlie  liaud  that  penned  the  following  para- 

1    J.  These  oin'n- 

graph* ions    con- 

trasteii. 

"  If  we  venture  to  dispute  the  law  recently  laid 
down  by  the  learned  judge  (Lord  Stowell),  it  is  upon  his  own 
authority.  By  what  streti'h  of  ingenuity  can  we  reconcile  the 
position  that  the  court  treats  tlie  English  government  and  for- 
eign governments  alike,  determining  the  cause  exactly  as  it 
would  if  sitting  in  the  claimant's  country,  with  the  new  posi- 
tion that  the  English  government  possesses  legislative  powers 
over  the  court,  and  that  its  orders  are,  in  the  law  of  nations, 
what  statutes  are  in  the  municipal  law  ?" 

4.  The  result  is  that  our  prize  court,  while  af- 
fecting* to  administer  the   maritime   law 

n  ,•  •       •        X*      i.    1  1     J.  1  The    court 

oi  nations,  is  in  tact  bound  to  obey  or-     has  two 
ders  in  council,  and  proclamations  issued 
hy  one  of  the  very  parties  who  are  litigating  be- 
fore it. 

5.  On  this  point  we  consider  it  a  positive  duty 
to    quote    the    follow! no;   admirable    sen-    «  . 

1  o  Sei'ions  con- 

tences  from  the  skilful  pen  aforesaidf —    sequence. 

"  What  analogy  is  there  between  the  proclamations  of  one 
belligerent  as  relating  to  points  in  the  law  of  nations,  and  the 
enactments  of  statute  as  regarding  the  common  law  of  the  land? 
Were  there  indeed  any  general  council  of  civilized  states  —  any 
congress  such  as  that  fancied  in  Henry  IV's  famous  project  for 
a  perpetual  peace  —  any  Amphyctyonic  council  for  modern  Eu- 
rope, its  decisions  and  edicts  might  bear  to  the  established  })ub- 
lic  law  the  same  relation  that  statutes  have  to  the  municipal 
code ;  because  they  would  be  the  enactments  of  a  common 
head,  binding  on  and  acknowledged  by  the  whole  body.  But 
the  edi(;ts  of  one  state,  in  questions  between  that  state  and  for- 
eign powers  —  or  between  that  state  and  the  subjects  of  foreign 
powers — or  between  those  who  stand  in  the  place  of  that  state 

*  Ediiib.  Her.,  Feb.,  1812.  f  Ibid. 


38  THE    PIIIZE    JURISDICTION. 

and  foreijrn  covernmonts  or  individuals — much  more  nearly  re- 
semble  the  acts  of  a  party  to  the  cause  than  the  enactments 
of  the  law  by  wlilch  both  parties  are  bound  to  abide.  Mark  the 
consequences  of  such  loose  doctrines,  such  feeble  analogies. 
They  resolve  tiiemselves  into  an  immediate  denial  that  any 
such  thing  as  the  law  of  nations  exists,  or  that  contending  par- 
ties have  any  common  court  to  whicli  all  may  resort  lor  justice. 
There  may  be  a  court  for  French  captors  in  France,  and  for 
English  captors  in  England.  To  these  tribunals  such  parties 
may  respectively  appeal  in  safety:  for  they  derive  their  rights 
from  edicts  issued  by  the  governments  of  the  two  countries  sev- 
erally ;  and  those  edicts  are  good  law  in  the  prize  courts  of 
each.  But  for  the  American  neutral  claimant  there  is  no  law 
by  which  he  may  be  redressed;  no  court  to  which  he  may  resort. 
He  is  a  prey  to  the  orders  of  each  belligerent  in  succession. 
Even  under  the  old  and  pure  system  of  1798  and  1799,  the 
neutral  was  forced  to  receive  his  sentence  in  a  foreign  court, 
always  the  court  of  the  captor's  country.  But  how  is  it  now, 
when  the  court,  sitting  as  before,  has  made  so  large  a  stride  in 
allegiance  as  to  profess  an  implicit  obedience  to  the  orders  of 
the  belliirerent  ijovernment  witliin  whose  dominions  it  acts  ?" 

6.  Dr.  Phillimore  is  clear  tliat  the  "orders  in 
,    ,^,,         council   of  1807  contravened   the   inter- 

Lord  Stow- 

tion  diffi-  national  law ;"  but  be  admits  tbat  Lord 
"""'*•  Stowell  "carried  tbeni  into  execution."* 

Tbe  position  of  tbis  judge  was  one  of  difficulty. 
He  acted  under  two  authorities,  lie  tried  to  obey 
botb,  even  wben  tbey  disagreed.  AYe  can  now  do 
justice  to  bis  motives;  but  bis  line  diction,  bis 
delightful  manners,t  and  bis  real  purity  all  failed 
to  save  him  from  the  censure  of  his  contempo- 
raries. Thus,  in  addition  to  tbe  strictures  we 
have  quoted,  we  lind  that  Mr.  Horner,  who  was 
in  constant  communication  with  some  of  the  l)est 

*  3  Phill.  Int.  Law,  p.  5.'^9.  f  See  Townsend's  Memoir. 


THE    PRIZE    JURISDICTION.  39 

men    of   his    time    (among    others,    Sir    Samuel 
Romill}^  Sir  James  Macintosh,  and  Lord  Henry 
Petty),  wrote  to  John  Allen:*  "Sir  William  Scott 
(Lord  Stowell)  is  said  to  have  furnished  ministers 
with  his  opinion  in  favor  of  our  right  to  search 
ships-of-war  for  deserters."     The  British  govern- 
ment had  the  very  month  before  conveyed  to  the 
American  minister  a  disavowal  of  any  such  rightf 
About  the  same  period, J  Mr.  Horner,  writing  to 
Mr.  Murray  (afterward  the  eminent  Scotch  judge), 
says:   "Sir  William  Scott  told  Sydney  Smith  that 
no  iJrinciple  is  more  plainb/  laid  down    than    our 
right  to  take  the  navy  of  the  Danes ;  and  so  he 
has  been  ready  to  say,  and  would  be  still  ready, 
for  any  outrage  or  breach  of  the  law  of  nations 
that  the  government   of  this  countrj^  has    dared 
or   is   meditating   to  commit."     The  remarks  of 
Mr.  Horner  are   too  severe  ;  but   they  show  the 
impression    entertained   respecting  Lord   Stowell 
by  men    of  the    first    eminence    in    this  country. 
But  if  we  tur!i  to  foreign  witers  of  neutral  nations 
we  shall   find   not  only   strong  reprehension,  but 
even  imputations  of  corruption.     The   American 
jurist,   Mr.  Wheaton,   who  had  served    diplomat- 
ically in  sundry  parts  of  Europe,  sets  out  in  his 
"Elements"  the  grievances  of  the  Baltic  powers, 
which   they  referred   to   the   supposed  "tyranny" 
of  England,  as  exercised  in  her  prize  jurisdiction. 
He  goes  i)articularly  into  the  complaints  of  Den- 
mark,   when    Lord    Stowell    decided    that   ships 

*  August  31,  1807.     Horner's  Memoirs, 
t  See  4  James'  Nav.  Hist.,  333.  t  September  29,  1807. 


40  THE    PRIZE    JURISDICTION. 

under  convoy  were  liable  to  visit  and  search,  and 
subject  to  confiscation  for  refusing  to  submit  to 
either.*  Mr.  VVheaton  was  himself  deeply  im- 
bued wnth  the  feelings  described  by  him.  Speak- 
ing of  Lord  Stowell,  he  says,  "that  highly  gifted 
and  accomplished  man  has  been  compelled  to 
avow  that  he  was  bound  by  the  king's  instruc- 
tions; and  we  know  that  his  decrees  are  liable 
to  be  reversed  by  the  privy  council,  from  which 
those  instructions  emanate.  The  rapacity  and  in- 
justice of  the  British  courts  of  vice-admiralty 
in  the  colonies  are  notorious. "f  Mr.  Wheaton 
even  talks  of  "the  pure  hands"  of  the  American 
judges,!  apparently  by  way  of  contrast  to  the 
hands  of  Lord  Stowell,  and  the  hands  of  the 
colonial  vice-admiralty  judges.  The  editor  of 
the  "Elements,"  Mr.  Lawrence,  charges  Lord 
Stowell  with  "  ministerial  subserviency. "§  He 
remarks  that  Lord  Stowell  "at  one  time  appeared 
to  regard  the  text  of  the  king's  instructions  as 
binding  on  his  conscience ;  at  another,  he  held  it 
indecorous  to  anticipate  the  possibility  of  their 
conflicting  with  the  law  of  nations. "||     It  is  very 

*  3Iari((,  1  Robinson,  340.  Lord  Stowell's  judgment  in  this  case  is 
admirable  in  composition,  argument,  and  diction  ;  but  the  decision  is  in 
tbe  last  degree  questionable.  Mr.  Massey,  in  bis  instructive  history, 
says,  "a  rigbt  of  search  can  never  be  made  to  extend  to  ships  under  the 
immediate  protection  of  a  man-of-war.  An  attempt  to  enforce  it  under 
such  circumstances  is  an  insult  to  the  flag  so  challenged."  It  is  curi- 
ous that  Lord  Stowell,  in  this  case,  speaks  about  the  Roman  civil  law  ; 
but  he  cites  no  text,  and  we  believe  it  would  be  difficult  to  find  one,  on 
the  privileges  of  maritime  convoy. 

flntrod.  Rem.,  37.  ^  Introd.  Rem.,  79. 

i  Ibid.  It  Ibid. 


THE    PRIZE    JURISDICTION.  41 

true  the  same  writers  are  equally  liberal  of  their 
conderrniation  when  speaking  of  French  prize  ju- 
risdictions. But  this  only  raises  these  questions : 
first,  whether  neutrals  are  likely  ever  to  be  sat- 
isfied with  adjudications  coming  from  a  belliger- 
ent state,  their  opponent  in  the  prize  litigation; 
and  secondly,  whether  it  would  not  be  better  to 
place  this  invidious  jurisdiction  in  some  separate, 
independent,  and  disinterested  territory.  This 
suggestion,  however,  is  not  free  from  difiiculties; 
nor  are  we  at  all  clear  tliat  any  good  would  come 
of  it.  It  is  the  law  itself — so  hard  on  neutrals — 
that  causes  the  evil,  and  not  the  instrument  of  its 
administration. 

7.  It  is  not  wonderful  that  Lord  Stowell  should 
have  been  considered  a  harsh  judge  to- 

d,        ,  p  T  ,  . ,  Lord  Stowell 

neutrals;  tor  unless  where  there  was  severe  on 

gross  culpability  on  the  part  of  the  cap- 
tors, although  restitution  might  be  ultimately  or- 
dered, neither  damages  nor  costs  were   awarded 
against  them. 

8.  We   are   told   by   that   eminent  judge,    Dr. 
Lushiui^^ton,  that,  "  durine:  the  seventeen  , 

t5  '  '  o  Indulj^ent  to 

years  Lord  Stowell  presided  in  the  prize  f'^ptors. 
court  he  had  condemned  captors  in  costs  and 
damages  in  only  about  ten  or  a  dozen  cases;  not 
one  in  a  thousand."*  On  another  occasion  Dr. 
Lushington  said  "he  believed  that  not  one  case 
would  be  found  where  Lord  Stowell  condemned 
the  captors  in  costs  and  damages  upon  the  ground 

*  The  Ofit>ice,  Dr.  Spinks'  Prize  Cases,  174. 


42  THE    PRIZE    JURISDICTION. 

that  tlie  papers  and  depositions  did  not  disclose  a 
probable  cause  of  capture."*  Accordingl}^,  the 
marginal  note  or  summary  of  a  most  important 
case  decided  by  Dr.  Lushington  daring  the  hate 
Russian  war  is  in  these  words :  "  If  captors  seize 
a  vessel  without  any  ostensible  cause,  the\'  are 
liable  to  costs  and  damages;  but  this  is  the  ex- 
tremity of  the  law  of  nations,  and  should  only  be 
adopted  in  cases  of  imperative  necessity. "f  Such 
cases  were  evidently  rare  in  Lord  Stowell's  time; 
though  not  quite  so  rare  as  Dr.  Lushington  im- 
agined; for  on  an  {ippeal  from  his  decision  in 
''  The  Ostsee,''  coming  before  the  Judicial  Com- 
mittee, in  1856,  Lord  Kingsdown,  in  giving  judg- 
ment, observed  "that  the  cases  in  which  during 
the  late  war  restitution  was  attended  with  costs 
and  damages  turn  out  upon  inquiry  to  be  more 
numerous  than  was  supposed. "J 

9.  In  those  cases,  undoubtedly  few  and  fiir  be- 
tween, where  damages  and  costs  were 
awardTtlT'^  awardcd  against  the  captors,  the  amount 
cap  ors.  ^^^^  generally,  if  not  invariably,  made 
good  by  the  government.  And  this  was  not  un- 
reasonable. It  was  the  polic}^  of  the  government 
to  stimulate  the  energy  of  its  officers;  and  if  they 
acted  in  obedience  to  orders,  the  state  must  in- 
demnify them.  It  appears,  accordingly,  that  the 
occupation  of  captors  was  not  without  other  ad- 
vantages besides  the  satisfaction  which  arises  from 


*  The  Leiicade,  Si)inks'  Prize  Cases,  224. 
t  The  0><tsee,  Dr.  Slinks'  Rep.,  174. 
J  Spinks'  Prize  Cases,  174. 


THE    PRIZE    JURISDICTION.  43 

the  performance  of  a  duty — the  general  practice 
having  been  to  distribute  among  them  the  pro- 
ceeds of  prizes,*  pour  encourager  les  autres.-\  The 
practice  in  America  appears  to  correspond;  for  we 
remark  that  Captain  Wilkes  claimed  credit  for  the 
sacrifice  he  made  in  forbearins;  to  take  the  'fS^ent 
into  port  on  a  late  memorable  occasion. | 

10.  It  requires  but   little  reflection  to  perceive 
that  random  seizures  must  have  been  fre- 

quent  under  a  system  which  rewarded  toian^iom 
tlie  captors  with  prize  money  when  in 
the  right,  and  protected  tliem  from  penalties  when 
in  the  wrong.  Lord  Kingsdown  has  said  "that 
the  temptation  to  send  in  ships  for  adjudication  is 
sufhciently  strong."  In  Lord  Stowell's  time  it 
was  too  strong. 

11.  The  law  of  Lord  Stowell  bound  his  succes- 
sor, Dr.  Lushington,  in  the  court  below  ;      c<.rrection 
but  it  was  corrected  in  the  judicial  com-     StoSs 
mittee  by  Lord  Kingsdown,  from  whose     ^'''^' 
judgment  we  deduce  the  following  propositions  — 

*  3  PhiUimorc,  Int.  Law,  459. 

f  A  most  learned  friend  states,  with  reference  to  the  practice  in  Lord 
StoweH's  time,  that  the  desire  of  encouraging^  captures  was  predomi- 
nant. The  distinction,  however,  was  matle  between  the  captors,  whether 
they  were  officers  in  the  navy  or  captains  of  privateers.  In  the  case  of 
the  former,  the  court  'felt  great  anxiety  to  protect  them.  periia[)S  some- 
times even  beyond  what  could  be  strictly  reconciled  with  principle.' 
Nvmeiis,  Edw.  Rep.,  52.  At  all  events,  except  in  flagrant  cases,  it 
would  protect  them.  Upon  several,  besides  those  referred  to  in  *  the 
Osttee,'  the  court  has  intimated  an  opinion  that  the  government  should 
protect  officers  in  the  navy." 

X  See  his  letter  to  the  Secretary  of  the  Navy  at  New  York,  dated 
from  on  board  the  San  Jacinto,  at  sea,  November  16,  1861. 


44  r        LATE   CHANGES    IN 

"  A  sliip  may  by  her  own  misi-onduct  liavo  occasioned  her 
capture ;  and  in  such  a  case  it  is  very  reasonable  that  she  should 
indemnify  the  captors  against  the  expenses  which  her  miscon- 
duct has  occasioned. 

"  Or,  she  may  be  involved,  with  little  or  no  fault  on  her  part, 
in  such  suspicion  as  to  make  it  the  right,  or  even  the  duty  of  a 
belligerent  to  seize  her.  There  may  be  no  fault  either  in  the 
captor  or  the  captured;  or  both  maybe  in  fault;  and  in  such 
cases  there  may  be  damnum  absque  injuria,  and  no  ground  for 
anything  but  simple  restitution. 

"  Or  there  may  be  a  third  case,  where  not  only  the  ship  is  in 
no  fault,  but  she  is  not,  by  any  act  of  her  own,  voluntary  or 
involuntary,  open  to  any  fair  ground  of  suspicion.  In  such  a 
case  a  belligerent  may  seize  at  his  peril,  and  take  the  chance  of 
something  appearing  on  investigation  to  justify  the  capture;  but 
if  he  fails  in  such  a  case  it  seems  very  fit  that  he  should  pay  the 
costs  and  damages  which  he  has  occasioned."* 


Section   YIII. 

Late  Changes  in  the  3Iaritime  Laio  of  Nations. 

1.  At  the  close  of  the  Crimean  war  the  leading 
The  Paris  powcrs  of  Europc,  namely,  Great  Britain, 
deci'aJa"  Austria,  France,  Knssia,  Prussia,  Sar- 
tjons."  dinia,   and  Turkej'   were   represented  at 

Paris  by  their  respective  plenipotentiaries,  who, 
assembled  in  congress,  applied  themselves  to  the 
impoj'tant  task  of  amending  what  they  call  the 
*' maritime  law  in  time  of  war;"  that  law  having 
long  been  confessedly  productive  of  "deplorable 
disputes,"  which,  they  held,  might  thereafter  "oc- 
casion serious  difficulties,  and  even  conflicts."    To 

*  2  Spiuks'  Ecc.  and  Adm.  Hep.,  171. 


THE    MARITIME    LAW.  45 

avert  such  calamities  for  the  future  the  plenipo- 
tentiaries, on  the  16th  April,  1856,  "adopted" 
certain  "solemn  declarations,"  which  will  in  due 
time  be  specified. 

2.  But  before  doing  so  it  is  fit  that  we  consider 
for   a    moment   how  far   these    "solemn     now  far 

-        ,  .  , ,  1   •       T  /-\       2.^   '       •     ±  tlioy  bind. 

declarations     are  binding.    On  this  inter- 
esting point  Lord  Derby*  has  made  the  following 
observations  — 

"  Undoubtedly,  it  is  true, that  the  agreement  of  the  congress 
has  not  up  to  the  present  moment  the  binding  force  of  a  treaty, 
nor  has  it  been  ratified  by  the  sovereign.  It  does  not  alter  the 
real  state  of  international  law  ;  but  I  hold  that  all  the  powers 
whose  representatives  signed  this  paper,  and  who  have  not  since 
disavowed  it,  are  morally  bound  by  the  liabilities  and  obligations 
imposed  upon  them  at  the  time." 

If  this  country  is  morally  bound,  it  is  bound  le- 
gally; for  although  there  is  some  countenance  for 
the  doctrine  which  says  that  an  engagement  en- 
tered into  by  a  plenipotentiary  requires  the  subse- 
quent ratification  of  the  sovereign,  yet  is  this  a 
doctrine  which  most  people  will  think  more  hon- 
ored in  the  breach  than  the  observance;  and  such 
evidently  is  the  opinion  of  Lord  Derby.  It  is  also 
the  opinion  of  Lord  Russell,  w^ho,  though  he  holds 
that  the  "declarations"  were  on  our  part  "very 
imprudent,"  and  though  he  considers  the  "whole 
matter  most  unsatisfiictory,"  he  yet  "does  not  see 
that  a  breach  of  faith  would  at  all  mend  our  posi- 
tion."t 

*  7th  Feb.,  1862. 

f  Hanmrdy  July  14,  1857.  It  appears  that  the  Paris  declarations 
are  now  agreed  to  by  all  the  great  states  except  America. 


46  LATE    CHANGES    IN 

We  have,  moreover,  the  reply  of  Lord  Granville 
to  Lord  Derl)y,  stating-  that  the  courvse  taken  by 
our  plenipotentiary*  had  the  entire  approbation  of 
the  British  government,  wlio,  after  many  inter- 
changes of  commnnication,  and  after  profound  de- 
liberation, came  to  be  of  a  clear  opinion  "  that  it 
was  for  the  benefit  of  this  country  that  the  rules 
agreed  upon  at  Paris  should  be  adopted." 

3.  This  being  so,  let  us  examine  the  "  solemn 

declarations"   in   their  order.     The  first 
Privateering  of  thcm   is  couclicd  with   commendable 

abolished. 

brevity  in  the  following  odd  terms  — 

Prioateering  is  and  remains  abolished. 

Great  Britain  is  supposed  to  have  gained  much 
by  the  abolition  of  privateering.  The  French  jour- 
nalists allege  that  it  was  for  this  reason  she  acceded 
to  the  second  ''solemn  declaration,"  which  we 
shall  come  to  presently.  In  fact,  Lord  Charendon 
has  said  as  much.  On  the  22d  May,  1856,  in  his 
place  in  the  House  of  Lords,  giving  an  account  of 
his  stewardship  at  Paris,  he,  among  other  things, 
stated  that  the  abolition  of  privateering  was 
''  more  than  an  equivalent  for  the  abandonment  of 
a  claim  which  could  not  have  been  sustained." 

4.  America  was  asked  to  concur  with  the  pleni- 

potentiaries, but  she  refused,  simply  be- 

Effecton  ^  '  ,  .  . 

America.  causc  Aiucrica  wished  to  retain  priva- 
teering:, unless  a  resolution  were  come  to  that  all 
private  property,  belligerent  as  well  as  neutral, 
should  be  held  inviolable  and  sacred  at  sea.    Both 

*  The  Earl  of  Clarendon. 


THE    MARITIME    LAW.  4t 

countries,  England  and  America,  proceeded  on 
intelligible  principles.  England  baa  a  great  mer- 
cantile marine,  and  also  a  great  navy.  She  there- 
fore requires  no  privateers,  and  it  is  ber  interest 
tbat  other  nations  should  dispense  with  them. 
America,  on  the  other  hand,  has  a  great  mercan- 
tile marine,  but  a  small  navy.  America  conse- 
quently encourages  individual  enterprise  in  war, 
and  is  in  fact  obliged  to  ve]y  upon  it.  The  legis- 
lature of  New  York,  in  1812,  passed  an  act  to 
promote  privateering  associations,  to  whom  corpo- 
rate privileges  were  given  for  the  purpose,  as 
Chancellor  Kent  tells  us,  of  "annoying  the  enemy, 
and  injuring  their  commerce."*  It  may  be  said, 
and  w^ith  great  probability,  that  hostilities  con- 
ducted by  buccaneering  companies  are  not  likely 
to  furnish  edifying  examples  of  forbearance.  But 
they  can  only  plunder,  and  imitate  successfully 
her  majesty's  cruisers.  Both  are  stimulated  by 
booty.  The  comparative  degrees  of  eagerness  we 
need  not  investigate. 

The  Paris  declaration  binds  only  tliose  who 
were  parties  to  it.  It  therefore  does  not  bind  the 
Americans;  neither  would  it  bind  this  country  in 
a  war  with  them. 

5.  The  second  "solemn  declaration,"  the  most 
important  of  all,   was  a  prodigious   ad-     y.nomy'^ 
vance  in  maritime  law  reform.     The  an-     S'^'iTen- 
cient    Consolato   del   Mare  had    declared     ^raiAag. 
more   than   six   centuries   ago  that    merchandise 

*  1  Comm.  98. 


48  LATE   CHANGES    IN 

belongins^  to  an  enemy  was  coniiscable,  thongli 
found  in  the  sliip  of  a  friend.  This  harsh  rule, 
unless  qualified  by  treaty,  was  invariably  enforced 
by  the  Englif^li  prize  court,  though  it  was  not 
always  followed  by  the  Continental  states.  But  it 
has  been  reversed  and  extinguished  by  the  con- 
gress of  Paris.  The  change  is  pronounced  by  M. 
liautefeuille  to  be  a  mighty  triumph  of  civilization 
over  what  he  calls  the  "ferocious  maxims  of  the 
middle  ages";  and  it  is  thus  justitied  by  Lord 
Clarendon — ^ 

"In  the  course  of  the  last  two  centuries,  one  hundred  and 
thirty  international  engagements  have  been  made  between  the 
principal  powers  of  the  world,  in  all  of  which,  with  eleven 
exceptions,  the  rule,  "  free  ships,  free  goods,"  is  contained. 
What  I  deduce  from  this  is,  that  in  time  of  war,  and  in  the  heat 
and  animosity  of  war,  men  lay  aside  this  principle,  and  resort  to 
extreme  and  violent  measures  ;  but  that  when  at  peace,  and 
under  the  influence  of  reason  and  judgment,  they  never  hesi- 
tate to  declare  that  that  should  be  the  rule  of  civilized  nations." 

Every  other  maritime  power  in  the  world  has 
protested  against  our  practice,  and  at  the  com- 
mencement of  the  Russian  war  England  was  the 
only  power  which  upheld  the  right  of  seizure.* 

The  words  which  have  introduced  this  impor- 
tant revolution  are  the  following — 

The  neutral  flag  covers  enemy's  goods,  loith  the  excep- 
tion of  contraband  of  loar. 

A  death-blow  is  here  given  to  the  authority  of 
many  valued  judgments  of  the  prize  court,   and 

*  Hansard,  22d  May,  1856. 


THK    MAllITlxME    LAW.  49 

many  cherished  doctrines  of  the  jurist,  which  are 
wliolly  swept  awa}-  if  we  suppose  the  second 
"solemn  dechiration  "  to  he  hinding. 

6.  Lord  Derhy  has  serious  misgivings  as  to  the 
wording  of  tlie  second  "  solemn  declara- 
tion."    He  thus  expresses  his  apprehen-  applchen- 
sions — 

"  I  confess  that  I  regret — and  I  expressed  my  regret  at  the 
time* — tlie  sacrifice  which,  as  I  thought,  my  noble  friend  f  had 
made  in  1856,  when  he  consented,  on  the  part  of  the  govern- 
ment of  this  country,  to  the  principle  that  enemy's  goods  should 
be  safe  on  board  neutral  vessels.  I  thought  this  a  dangerous 
concession  for  a  country  situated  as  ours  is;  and  I  remon- 
strated against  it.":}: 

^  7.  Lord  Palmerston,  on  the  other  hand,  fore- 
bodes no  ev^il  from  what  w^as  done  at  Lord  va\m- 
Paris.  According  to  his  lordship,  "  the  ^oodaugu- 
idea  that  the  results  of  w^ar  depend  upon  '"''* 
the  capture  of  an  enemy's  goods  on  hoard  of  neu- 
tral bottoms  can  only  originate  in  a  mind  wholly 
unacquainted  w^ith  thp  most  familiar  lessons  of 
history. "§  Alluding  to  the  fact  that  Queen  Vic- 
toria had,  at  the  beginning  of  the  Russian  war,  in 
March,  1854, ||  waived  her  right  to  seize  enemy's 
goods  in  neutral  vessels,  Lord  Palmerston,  in  his 
Liverpool  speech,  on  the  7th  [N'ovember,  1856, 
stated  thatwdiile  the  effect  of  the  waiver  was  not 
"  in  any  degree  to  impair  the  power  of  the  bellig- 
erents  against  their  opponents,  it  yet  tended  to 

*  Iliinsard.  22<1  May,  1856.  g  Stnr,  6th  Feb.,  1862. 

f  Liir<l  Chirciid'in.  ||  lu/ra,  p.  92. 

+  'nincH,  7th  Feb.  1S62. 


50  LAfE    CHANGES    IN 

mitigate  the  pressure  which  hostilities  inevitably 
produced  upon  the  commercial  transactions  of 
countries  tliat  were  at  war."* 

8.  The  following  imaginary  but  trying  case  was 

on  the  Tth  February,  1862,  put  by  Lord 

Cano  put  l.y  J  t  t    I  J 

LordDerby.       ])orbv 

ft/ 

*'  If  we  had  gone  to  war  witli  the  Federal  States,  I  will  ask, 
in  passing,  what  would  have  been  the  result  of  our  adoption  of 
the  doctrines  of  the  congress  ?  We  had  an  agreement — I  won't 
call  it  a  convention — with  France.  We  had  no  agreement 
with  America.  In  the  event  of  a  war  with  America,  there- 
fore, American  merchandise  on  board  a  French  vessel  would, 
bv  our  obligations  with  France,  be  safe  a<jainst  our  cruisers :  and 
American  commerce  would  enjoy  impunity  when  carried  on  in 
French  vessels,  owing  to  an  aijreement  in  which  America  had 
no  part.  Thus  the  treaty  would  have  a  very  one-sided  opera- 
tion, and  one  nation  would  secure  all  the  benefits  without 
being  a  party  to  it,  while  the  other  would  sacrifice  all  its  advan- 
tages, because  she  was  a  party  to  it.  That  is  a  position  in  which 
England  ought  not  to  stand  toward  any  country  whatever."! 

9.  Earl  Granville  replied  by  showing  the  course 

w^liich  Great  Britain  would  take  under 

Answer  by 

viiie^''^"      ^^^^  ^^^^^^  regime.     His  lordship  said — 

"  I  think  the  noble  earl  was  not  (juite  right  in  the  illustration 
he  gave  of  the  effect  of  allowing  neutral  ships  to  carry  the 
woods  of  belli"-erents.  If  a  war  arose  with  the  United  States,  I 
have  no  doubt  that  our  first  operation  would  be  to  blockade,  and 
that  in  a  very  efficient  manner,  all  the  ports  of  that  country, 
thereby  putting  a  considerable  and  speedy  check  upon  the 
American  trade.  And  so  far  from  its  being  a  disadvantage  that 
any  commerce  which  she  carried  on  should  be  carried  on  in 
neutral  bottoms,  it  wouhl  be  quite  the  reverse." 

*  Times,  8th  November,  1856.         f  Tunes,  7th  Fob.,  1862. 


THE    MARITIME    LAW.  61 

10.  The  third  "  solemn  declaration  "  of  the  Paris 

congress  is  that Neutral  goods 

Neutral  goods,  with  the  exception  of  con-  enenly'sflag. 
iraband  of  war,  are  not  liable  to  capture  under  enemy's 
flag. 

Here  no  change  is  ihtroduced  so  far  as  this 
country  is  concerned ;  for  it  was  ever  the  English 
and  American  practice  to  respect  neutral  property 
in  hostile  ships.  The  ships  indeed  were  captured, 
but  the  goods  of  the  friendly  owner  were  uni^ 
formly  surrendered  to  him.  In  this  respect  the 
practice  of  some  Continental  states  differed  from 
our  own  ;  but  the  difference  is  only  matter  of  his- 
tory, and  need  not  be  gone  into,  the  new  juris- 
prudence of  Europe  on  the  high  seas  now  being 
that  the  neutral  flag  protects  an  enemy's  property; 
and  that  neutral  property  is  safe,  though  found 
under  an  enemy's  flag. 

11.  We  now  come  to  the  fourth  and  last  "sol- 
emn  declaration"    of  the   plenipotentia- 

,  -  ^  ^  Wliat  block- 

ries,  namely,  that —  adpsbin.iby 

.  the  Paris  (ie- 

Blockades  in  order  to  be  binding  nmst  be   f">t'»tion. 
effective — that  is  to  sag,  maintained  by  a  force  sufficient 
really  to  prevent  access  to  the  coast  of  the  enemy. 

On  the  subject  of  blockades  we  have  already 
said  enough.*  The  "  solemn  declaration "  does 
alter  the  law  as  laid  down  by  approved  authorities. 

12.  The  Queen's  proclamationf  charges  her  sub- 
jects to  abstain  from   "  breaking,  or  en- 
deavoring to  break,  any  blockade,  law-    iuel''n"«p?o^- 
fully  and  actually  established  by,  or  on    ^'""''^'^•"• 

*  See  «»7./vf^).  27.  |  Infra,  p.  84. 

5 


52  PROPOSED    CHANGES    IN 

behalf  of  the  contending  parties;  l)ut  it  does  not 
say  that  such  blockade  ''must  be  effective — that  is 
to  say,  maintained  by  a  force  sutHcient  really  to 
prevent  access  to  the  coasts  of  the  enemy." 

This  variance  is  not  likely  to  have  been  acci- 
dental. Those  who  drew  np  the  Queen's  procla- 
mation must  have  had  before  them  at  the  time  the 
Paris  declaration.  The  deviation,  therefore,  was 
by  design  and  for  a  purpose — possibly  the  laudable 
one  of  adhering  to  precedents:  seeing  that  Amer- 
ica was  no  party  to  the  Paris  declarations.  For- 
eign critics,  however,  resort  to  a  less  charitable 
construction  ;  for  they  more  than  insinuate  that 
the  effective  blockades  described  by  the  plenipo- 
tentiaries are  viewed  with  disfavor  by  the  British 
o-overnment. 


Section    IX. 

Proposed  Changes  in  the  Maritime  Law  of  Nations. 

1.  After  the  great  step  taken  by  the  Paris  pleni- 
potentiaries,   in    1856,    the   question    re- 

Oughtprivate  ^      .  /  ^        ^  i         ^'r^l       ^^ 

piopcrtytobe  rnaiiis — an  important  and  a  ditncult  one — 

1 ispected  at  ^  .  ^  .  , 

soa?  whether   a   further   stride    in    the    same 

direction  has  not  become  expedient;  in  other 
words,  whether  it  is  not  lit  to  put  an  end  at 
once  to  the  practice  which,  as  has  been  shown, 
prevails  during  war,  of  attacking  and  plunder- 
ing the  property  of  private  individuals  at  sea. 
Some  think  a  change  in  this  respect  imperative  ; 
others   hold    it   would    be    dangenDUs.     On    what 


THE    MARITIME    LAW.  53 

principle  are  we  to  proceed — the  good  of  Enc^land, 
or  of  the  world  at  lart^e?  Is  it  clear  that  they  dif- 
fer?  The  eye  of  the  publicist  looks  to  the  great 
family  of  nations,  having  regard  to  what  is  best 
for  maidvind.  The  niunicii»al  hiwyer  thiidvs  of 
nothing  but  the  interests  of  his  own  country.  The 
statesman  must  decide. 

If  wars  could  be  prevented  or  arranged  by  arbi- 
tration,* the  gain  would  be  immeasurable;  but 
before  aii}^  hope  of  such  happy  results  can  be 
relied  upon,  human  nature,  we  fear,  must  undergo 
a  change,  of  Avhich  the  indications  as  3'et  are  only 
partial  and  feeble,  if  not  hollow  and  deceitful. 
Therefore  it  is,  that  a  strong  etibrt  should  be  made 

*  The  Paris  plenipotentiaries  received  with  great  f'avur  a  suggestion 
much  urged  by  Lord   Clarendon,  that  friendly  mediation 
ought   in  all  cases   to  be  resorted    to  before  comnieneing    Protocol  as  to 
hostilities.      This    appears    by   the    protocol   of    the    14th    prevent 'war 
April,  1856.  from  which  wc  extract  the  following  passages: 

"The  Earl  of  Clarendon  having  demanded  permission  to  lay  before 
the  congress  a  proposition  which  it  appeared  to  him  ougbt  to  be  favor- 
ably received,  stated  that  the  calamities  of  war  were  still  too  present  to 
every  mind  not  to  make  it  desirable  to  seek  out  ever\'  expedient  calcu- 
lated to  prevent  their  return  ;  that  a  stipulation  had  been  inserted  in 
article  vii,  of  the  treaty  of  peace  (of  1856),  recommending  that  in  case 
of  diflference  between  the  Porte  and  one  or  more  of  the  other  signing 
powers,  recourse  should  be  had  to  the  mediation  of  a  friendh-^  state  be- 
fore resorting  to  force.  The  first  plenipotentiary  of  (Ireat  Britain  con- 
ceived that  this  happy  innovation  might  receive  a  more  general  appli- 
cation, and  thus  become  a  barrier  against  conflicts  which  frequently 
only  break  forth  because  it  is  not  always  pos¥iI)le  to  enter  into  expla- 
nation, and  to  come  to  an  understanding,  lie  proposed,  therefore,  to 
agree  upon  a  resolution  calculated  to  afford  to  the  maintenance  of  peace 
that  chance  of  duration  hereafter,  without  prejudice,  however,  to  the 
independence  of  governments.  Count  Walewski  declared  himself  au- 
thorized to  support  the  idea  expressed  by  the  first  plenipotentiary  of 
Great  Britain  ;    he   gave   the   assurance   that   the   plenipotentiaries   of 


54  PROPOSED    CHANGES    IN 

to  render  an  evil  so  diffieult  to  iivert  as  contracted 
in  the  range  of  its  niischiets  as  possible. 

2.  Now  it  has  been  said,  and  said  with  plausi- 
bility, tliat  war  ouii'lit  to  be  the  affair  of 

America  ,  j.       i'  •       t     •  i        i 

aswa.vs  for  governments,  not  oi  individuals,  nor  even 
ot  nations.  We  presume  that  tins  was 
Lord  Palmerston's  meaning  when  he  said  at  Liv- 
erpool that  ''  it  was,  perhaps,  to  be  desired  that 
conflicts  should  be  confined  to  the  bodies  acting 
under  the  orders  and  directions  of  the  respective 
states."*  On  one  occasion  the  distinction  be- 
tween an  armed  enemy  and  a  pacific  trader  was 
mutually  guaranteed  b}^  treaty;  a  treaty  which 
on    this    account    deserves    honorable    mention — 

France  were  wholly  dis>pose:l  to  concur  in  the  insertion  in  the  protocol 
of  a  wish  which,  being  fully  in  accordance  with  the  tendencies  of  our 
epoch,  would  not  in  any  way  fetter  the  free  action  of  governments. 
The  Earl  of  Clarendon  replied  that  each  power  is,  and  will  be  the  sole 
judge  of  the  reiiuirements  of  its  honor  and  its  interests;  that  it  was  by 
no  means  his  intention  to  restrict  the  authority  of  the  governments,  but 
only  to  afiford  them  the  opportunitj'  of  not  having  recourse  to  arms 
whenever  differences  might  be  adjusted  by  other  means.  The  wish  of 
the  congress  should  allow  of  the  most  general  application;  he  observed 
that  if  the  good  offices  of  another  power  had  induced  the  government 
of  Greece  to  respect  the  laws  of  neutrality,  France  and  England  would 
very  probably  have  abstained  from  occupying  the  Pirajus  with  their 
troops.  He  referred  to  the  cflforts  made  by  the  Cabinet  of  Great  Britain 
in  1823,  in  order  to  prevent  the  armed  intervention  which  took  place  at 
that  time  in  Spain.  Whereupon  the  plenipotentiaries  did  not  hesitate 
to  express,  in  the  name  of  their  governments,  the  wish  that  states  be- 
tween which  any  serious  misunderstanding  may  arise  should,  before 
appealing  to  arms,  have  recourse,  as  far  as  circumstances  might  allow, 
to  the  good  offices  of  a  friendly  power. 

"The  plenipotentiaries  lioped  tiiat  the  govornnicnts  not  represented 
at  the  congress  would  unite  in  the  sentiment  which  had  inspired  the 
wish  recorded  in  the  present  protocol." 

*  Times,  8lh  November,  1850. 


THE    MARITIME    LAW.  55 

that  between  America  and  Prussia  in  1785.* 
And  here  we  must  remember  that  the  Ameri- 
cans, ever  since  the  declaration  of  their  inde- 
pendence, and  more  especially  since  the  com- 
mencement of  the  war  of  1793,  have  uniformly 
insisted  ''that  public  ships  should  not  capture  any 
merchant  vessels,  or  otherwise  plunder  private 
property  upon  the  ocean  ;  but  confine  their  bel- 
ligerent operations  exclusively  to  the  ships  of  war 
of  each  nation. "f  It  appears,  indeed,  that  so  re- 
cently as  June,  18G1,  the  minister  of  the  United 
States  at  Paris  proposed  to  the  French  govern- 
ment "to  add  to  the  first  article  of  the  declaration 
of  1856  the  plan  of  protecting  private  property  on 
the  sea  from  capture  in  time  of  war. "J  How  far 
this  is  practicable,  how  far  it  is  wnse,  must  soon  be 
decided.  It  is,  at  all  events,  opposed  by  the  jurists, 
who  hold  that  the  veiy  notion  of  war  necessarily 
implies  a  cessation  of  all  commercial  intercourse 
between  the  belligerents. 

3.  The  first  I^apoleon,  a  man  of  speculation  as 
well  as  of  practice,  dissented  from   the    ^  .  . 

■I-  '  0]»iiii'iii  of 

jurists.  He  held  that  "belligerents  ought  ^Napoieuni. 
to  wage  war  without  giving  rise  to  the  confiscation 
of  their  mercantile  marine.     Commerce  should  be 


*  During  war  certain  favored  persons  are  authorized  to  trade  with 
the  enemy.  Others  do  so  without  license — hy  connivance.  This  shows 
that  convenience  is  felt  from  the  practice  on  both  sides;  and  it  would 
rather  appear  tliat  there  is  but  little  wisdom  in  restrict inj::  it. 

f  Rush's  Residence  at  the  Court  of  London.  Sec.  Ser..  vrd.  ii,  p.  12L 
J  Correspondence   respecting   International    Maritime   Law.     North 
America,  No.  ?>.     Presented  to  Parliament,  1S62,  p.  7. 


Dti  PUOPO.SKD    CHANGES    IX 

carried  on  ]>y  sea  hctweiMi  tlio  l\V(^  bolligeroiits  uj* 
it  is  carried  on  l>y  land  in  the  midst  of  the  battles 
of  tlie  contending  parties."* 

4.  So,  Lord  Pahuerston,  no  enthusiastic  innova- 
tor, addressing:  the  Liveriiool  clianiber  of 

Of  Lor<l  '^  '^ 

I'aimeiston.  commcrce,  on  the  7th  November,  1856> 
said:  "It  lias  been  a  sul)ject  of  great  satisfaction 
to  ust  to  reflect  that  at  the  commencement  of  the 
liussian  conflict  the  {government  of  Enii^land,  in 
concert  with  tliat  of  France,  made  changes  and 
relaxations  in  the  doctrines  of  war  which,  without 
in  any  degree  impairing  the  power  of  the  bellig- 
erents against  their  opponents,  maintained  the 
course  of  hostilities,  yet  tended  to  mitigate  the 
l)ressure  which  hostilities  inevitably  pi'oduce  npon 
the  commercial  transactions  of  countries  that  are 
at  w^ar.  I  cannot  hel[)  h(>[>ing  that  those  relaxa- 
tions of  former  doctrines  which  were  established 
in  the  beginning  of  the  war,  practised  during  its 
continuance,  and  which  have  been  since  ratified 
by  formal  engagements,  iiKu/  in'rhapf^  be  still  farther 
extended;  and  in  the  course  of  time  those  principles 
of  war  which  are  applied  to  hostilities  by  land 
may  be  extended,  without  exception,  to  hostilities 
by  sea;  so  that  }>i'ivate  }»ro})erty  shall  no  longer 
be  the  object  of  aggression  on  either  side.  If  we 
look  at  the  exami»le  of  former  periods  we  shall  not 
find  that  any  poweri'ul  country  was  ever  van- 
quished  through  the   losses  of  in(livi<luals.     It  is 


*  Quoted  by  Mr.  Lindsay  in  a  letter  to  Earl  Russell. 
f  Hid  lordslii;*  was  then,  as  now,  Chief  Minister. 


THE    MARITIME    LAW.  67 

the  conflict  of  iiriuies  by  laud,  and  of  fleets  ]\y 
sea,  that  decides  the  great  contests  of  nations."* 
It  took  the  Saxons  one  hundred  and  fifty  years  of 
murderous  and  devastating  raids  to  establish  them- 
selves in  this  island.  One  pitched  battle,  that  of 
Hastings,  completed  the  Korman  conquest  in  a 
day. 

5.  The  country  which  has  the  greatest  naval 
force  has  also  the  greatest  trade,  and  the  what  the 
largest  amount  of  property  afloat.  Con-  ii'leat  "^ 
sequently  the  losses  of  that  nation  may,  «"**'"• 
peradventure,  be  greater  than  her  captures,  re- 
gard being  had  to  the  difficulty  which  the  most 
effective  navy  will  experience  in  protecting  count- 
less merchantmen  on  every  sea.  This  difliculty 
will  be  increased  if  we  suppose  the  country  to  be 
at  any  time  in  danger  of  inv^asion,  and  the  navy 
to  be  required  for  the  protection  of  her  coasts.  It 
may  therefore  be  the  policy  of  that  nation  to  join 
in  establishing  a  universal  immunity  for  merchant 
ships  and  their  cargoes,  whether  neutral  or  bellig- 
erent, during  hostilities,  so  as  to  save  them  at  once 
from  the  depredations  of  cruisers,  and  the  obstruc- 
tions of  blockades.  If,  however,  blockades  were 
reconcilable  with  the  universal  immunity  desired 
by  merchants  and  ship-owners,  then  England  would 
be  safe,  for  she  could  blockade  her  enemy's  ports 
so  as  to  destroy  his  trade,  while  at  the  same  time 
lier  own  commerce  might  proceed  without  intor- 
ruption.f 

*    TiincK,  Sth  Novomhor.  1856. 

f  See  Satmdat/  Rcinew,  March   15,    1SC2.     But  see  tlie  rcinarkg   <.f 
Sir  R.  Palmer,  in/rn,  p.  78. 


58  PROPOSED    CHANGES    IN 

6.  Judging  from  tlie  resolutions  of  chanibei-s  of 

coniiueree,  and  from  the  evidence  taken 
the  iii.rcan-  bcforc    the    shipping   committee,*    it    is 

tile  body.  i-i  i  •iiii*  ^    • 

plain  that  the  mercantile  body  desire  this 
larjre  immunitv.  Mr.  A.  Gilmour  is  ''for  doins: 
away  with  captures  entirely."  Mr.  S.  E,.  Graves 
"sees  no  reason  why  private  property  should  he 
confiscated  at  sea,  and  on  land  allowed  to  go 
free."  He  holds  that  "EntJ^lands  commerce  has 
become  so  large  that  she  cannot  protect  it."  Mr. 
A.  Anderson  is  of  opinion  that  "  it  would  be  very 
desirable  if  England  could  make  a  step  further  in 
advance,  and  proclaim  that  all  private  property 
should  be  exempt  from  capture  at  sea."  Mr.  T. 
E.  Smith  thinks  "it  would  be  very  desirable  if  we 
could  get  all  private  property  exempted  from 
capture  in  case  of  war."  And  Mr.  J.  Beazley  is 
still  more  emphatic,  for  he  says  :  "Do  away  with 
the  right  of  capture,  or  ruin  our  British  shipping 
— one  or  the  other."t 

7.  The  question,  however,  is  not  to  be  decided 

by  merchants  and  ship-owners.    We  have 

Commons'      thc  rcport  of  a  committee  of  the  House 

of  Commons,^  who  aflirm  that — 

"  Though  grave  objections  have  been  urged  by  liigh  authori- 
ties against  any  further  step  in  advance,  they  (the  committee) 
are  of  opinion  that  in  the  progress  of  civilization,  and  In  the 


*  House  of  Commons,  .eession  18C0. 

t  Report  of  Counuons'  Coininittee  on  Shippinij,  1860. 

X  There  were  on  tins  coniniittoe.  besides  very  «;nunont  merchants  (in- 
cluding Mr.  Baring),  two  caljinet  ministers,  Mr.  Miluer  Gibson  and 
Mr.  Cardwell;  and  also  Lord  Lovaiue. 


THE    MARITIME    LAV.  59 

cause  of  humanity,  the  time  has  arrived  when  all  private  prop- 
erty, not  contiaband  of  war,  should  be  exi'mpt  from  capture  at 
sea ;  and  Great  Britain  is  deeply  interested  in  the  ado})tion  of 
this  course." 

8.  The  Secretaiy  of  State  for  foreign  affairs, 
Laving  been  asked,  on  the  18th  Febrn-  o,ini..nof 
ary,  18G1,  whether  any  steps  had  been  K'^>i i^"«''^"- 
taken  by  the  government  to  carry  out  the  recom- 
menchitions  of  the  shipping  committee,  gave  an 
answer  wdiich  shows  that  Earl  Kussell,  though  a 
reformer,  pauses  a  little  before  adopting  a  prin- 
ciple which  may  be  found  in  practice  less  bene- 
iicial  to  this  country  than  acceptable  to  others. 
His  lordship  treats  the  committee's  proposition 
as  somewhat  Utopian.     lie  says  — 

"  The  proposition  itself  seems  to  me  to  be  one  of  the  upmost 
magnitude.  It  is,  in  fact,  a  proposal,  that,  there  being  two  pow- 
ers, one  of  which  has  a  very  strong  army  and  a  weak  navy — the 
other  having  an  army  inferior  in  numbers,  but  a  superior  na- 
vy—  the  power  which  has  the  superior  navy  should  forego  all 
the  advantage  to  be  derived  from  that  source,  and  allow  the 
contest  to  be  decided  by  military  force  alone.  Its  adoption 
would  in  the  next  place  tend  rather  to  prolong  than  to  shorten 
wars;  because  one  way  in  Avhich  a  great  maritime  j)ower  can 
act  as  a  belligerent,  is  to  crlj)j)le  the  trade  of  its  op])oncnt.  The 
greater  itfs  strength  as  a  maritime  jjower,  the  greater  is  its  power 
to  do  this,  and  the  better  its  chance  of  bringing  the  war  to  a 
favorable  termination.  If  this  ])roposition  were  accepted,  the 
whole  of  the  })0wer  would  be  gone  which  has  hitherto  rendered 
Great  Britain  so  fonnidable  at  sea.  In  the  next  place,  I  per- 
ceive difJiculties  in  detail  which  would  be  insurmountable.  The 
mercantile  navy  of  a  belligerent  would  \)v  free  from  capture ; 
but  no  one  could  say,  when  a  number  of  vessels,  apparently 
merchant  ships,  appeared  off  the  coast,  that  they  might  not  be 
used  lor  j)urposes  of  war.  and  that  they  did  not  contain 


60  PROPOSED  CHANGES  IN  MARITIME  LAW. 

[Here  h'is  lordship  was  interrupted  by  Mr.  Bright,  but  on  re- 
suming, said — ]  I  regard  the  question  as  one  affecting  the 
•\vhok'  maritiuu;  power  of  this  country.  And  I  think  that  any 
minister  of  the  crown  ought  to  be  most  cautious  in  taking  any 
final  step  in  respect  of  it." 

These  considerations  are  truly  serious.  The 
subject  calls  for  greatly  more  discussion  than  it 
lias  hitherto  received.  The  leo^islature  has  not 
examined  it;  and  tlie  press  has  not  yet  suffi- 
ciently aroused  to  it  the  attention  of  the  country. 

9.  I  believe  I  have  now  done  fairly  what  I  pro- 
posed at  the  outset,  which  was,  to  state 
shortly  tlie  chief  points  —  to  offer  here 
and  there  a  suggestion  —  and  to  leave  to  the 
reader's  judgment  the  decision. 


Section  X. 


POSTSCRIPT. 


Showing  the  Present  State  of  Sentiment  in 
THE  House  of  Commons  as  to  Securing  an 
Immunity  for  all   Private   Property  at  Sea 

during   IIoS'riLITIES.* 

On   the   lltli    of   March,    1862,    Mr.   Ilorsfall  f 
called    the    attention    of   the    House    of 
Commons    to    the    subject    ot     interna-  moticu  to 
tional   maritime   hiw,  and   moved  a  res-  cantiie  cap- 
olution    that    the   existmij;  state    ot    that 
law   as   "afiectiiiii:  hellio-erents  and   neutrals   was 
unsatisfactory,  and  called  for  the  early  attention 
of  the  government."     The  real  ohject  of  the  mo- 
tion   was  to   obtain   a  discussion   of  the   subject. 
After  describing   the   old    law,   and    the   changes 
made  at  Paris    in    1856,   the   honorable   mend)er 
stated  his  own  view  to  be  that  all  private  proj*- 
erty  during  war  should  be  inviolable  at  sea  — 

"  The  question  was,  first,  what  would  be  the  effect  of  the  law 
in  the  event  of  war ;  and,  secondly,  what  had  been 

rr  -         •  /•  -HI-      *i  11  IJ'"   Opinion. 

Its  eilect  in  tune  ot    peace.      Merchants  would  not 

*The  speeches  wliich  follow   arc  abrul;;e«l   froiu   the    Timra  of  12th 
and  17tli  of  March,  1862. 
f  Mendier  for  Liverpool. 


62  PR IV ATE    PROPERTY 

ship  a  sinfrlo  pac  kajrt^'  of  j^oods  in  a  vi'ssol  liable  to  seizure  if 

they  had  the  opportunity  of  shipment  in  a  vessel  not  so  liable. 

The  operation  of  the  law  in  tlie  event  of  a  war,  say 

Evil  of  the       -vvith  Franre,  would  be  that  everv  British  ship  would 
law  in  war.  ^  •  ' 

be  laid  by.  Neutral  vessels  would  obtain  jxreatly 
enhaneed  freitrhts;  and  British  seamen  would  be  drafted  from 
British  ships  not  into  her  majesty's  navy,  but  into  neutral  ves- 
sels that  eould  alford  to  pay  much  hi<rher  wajrt's  than  had  ever 
been  or  ever  eould  be  j)aid  in  our  navy.  This  was  a  most  seri- 
ous matter  for  the  ship-owner,  the  manufaeturer,  and 

In  pciice.  ,  ,  T^  1         1       1   1  1  /Y" 

the  eountry  at  large.     But  what  liad  been  tlie  eiieet 

of  the  law  in  time  of  peaee  V      On  the  mere  rumor  of  war  a 

seeond-elass  Ameriean  vessel  was  able  to  get  freights  at  a  50 

per  cent,  higher  rate  than  a  first-elass  British  ship  eould  obtain. 

English  merchants  were  so  afraid  to  ship  their  tea  in   British 

ships  that  they  shippc'd  in   American  vessels  —  these  not  being 

subject  to  capture.     We  must  either  go  back,  or  we  must  go 

forward.     In  case  of  war,  ships  would  require  a  convoy.     That 

convoy  would  be  much  better  employed  in  fighting  the  enemy. 

Her  majesty  had  declared  her  anxiety  to  '  lessen  as  unich  as  [)os- 

sible  the  evils  of  war.'     'J'he  most  dillicult   part  of  the  ([uestion 

was  the  subject  of  blockade.     Those  whom  he  rep- 

Difliciiiiv  as     resented  were   in  favor  of  resi)ectin<;  the   blockade 

t(i  lilocUade.  .  , 

of  the  Southern  i)orts.  As  to  privateering  great  in- 
justice had  been  done  to  the  Americans.  They  would  not  give 
it  uj)  unless  the  great  ])Owers  of  Euro])e  would  consent  to  take 
the  still  widei"  ground  that  all  ])rivate  property  should  be  free. 
He  asked  the  House  to  adopt  his  motion ;  and  he  did  so  in  the 
name  of  the  commerce  ol'  the  country,  and  of  civili/ation,  hu- 
manity, and  justice." 

The  Attorney-Geiioi'al*  addrosscd  tlie  Hoii^^e  in 
an  able  si)eeeli,  but  I'atlier  witli  tlie  view 

The  Atlor-  ^  ,       .       ,.  .  ,         , 

neyficiiir-     ot  exikoundin*^  and  vindieatinj2^  tlie  law  as 

al'H  uiiinion.      .  .  /' 

it  now  stands  than  ol  diseussnii):  the  mer- 
its of  the  changes  proposed,  or  the  effect  which 

^  Sir  William  Athertun. 


TO    BE    SAFE    AT    SEA.  63 

they  were  likely  to  produce  on  the  general  inter- 
ests of  the  country.  He  held  that  the  dec-  p.^,.j^  ^,^^^^_ 
laration  of  Paris  was  a  concluded  fact.  nition  tinai. 
Mr.  Liddell*  denied  that  the  importance  of 
this  subject  was  confined  to  the  shippint^ 
interest —  opinion. 

"  The  doctrine  which  lay  at  the  root  of  our  present  maritime 
law  was  that  a  stronir  bcllii;creiit  slioulcl  by  means  of  its  sunrcni- 
acy  at  sea  harass  and  weaken  tlie  enemy.  But  by  admitting 
foreigners  to  our  colonial  and  coasting  trade  we  had  rendered  it 
impossible  for  us  in  future  to  act  uj)on  that  principle,  without  in 
time  of  war  handing  over  the  whole  of  our  commerce  to  the 
ships  of  other  countries.  For  these  reasons  we  must 
recognize  and  forward  the  principle  or  granting  im-  sn|>poi  t  im- 
munity to  private  proj^erty  at  sea.  We  should  '"""'^.v- 
invite  a  congress  to  promote  the  gtmeral  progress  of  commerce, 
and  to  consider  how  best  to  protect  the  property  of  unoffending 
ship-owners  from  rapine  and  destruction." 

Mr.  Baillie  Cochranef  censured  the  declara- 
tion of  l^aris  as  a  great  blunder.  But  Mr.  cmiiie 
he   should    regard,  tho   adoption    of  the     opinion. 

motion  before  the  House  as  a  still  more    Paris  decla- 
ration a 

unfortunate  event.  blunder. 

Sir  George  BowycrJ  said  it  was  difficult  to  un- 
derstand why  the  analog}'  of  terrestrial     sirc.eorKo 
war  should  not  prevail   with   respect  to     opinion.^ 
war  at  sea.     A  belligerent  had  no  more  right  to 
seize  a  merchant's  ship  on  the  sea  than   AnHiogy  be- 

111  •  1  n     1  1         tween  sea 

lie  had  to  seize  the  property  ot  the  people  an.iiand 

whom  he  invaded  by  land. 

o — 

*  Member  for  S.  Xorthiimlicrland. 
f  Member  for  Iloniton.  X  Member  for  Dundalk. 


64  PRIVATE    PROPERTY 

Sir  George  C.  Lewis*  said  tlie  question  was  of 
iirst-rate  importance;  anil  it  was  of  ])ara- 

8ir  Georpc  .  i  •  i  i  i 

c.  L."wis'       mount  importance  that  it  sliould  receive 

opiniun.  .      ,  ,        .    .  .  ,  , 

a  riglit  decision  in  that  liouse  — 

"Neutrals  have  no  intorost  in  tlio  j)ri!uipU'  wliicli  the  hon- 
orable mover  recommends  to  the  house.     Neutrals, 

Neutrals 

oppoKed  to       so  far  as  they  had  any  interest,  had  an  interest  di- 
tbe  motion.  ,  .'        ,  w    ^\  •  i      i    *      i 

rectly  opposite,  because   it    they  wished    to  become 

the  carriers  of  the  world  they  would  naturally  wish  that  the 
ships  and  goods  of  the  belligerents  should  be  exposed  to  risk. 
You  may  make  a  compact  that  in  time  of  war  you  will  respect 
the  neutral  flag.  For  instance,  we  have  now  a  compact  with 
France  and  other  Continental  powers  that  we  will  act  on  the 
principle  that  the  neutral  flag  covers  the  enemy's  goods,  so  that 
if  we  were  to  seize  American  goods  under  the  French  flag  we 
should  be  guilty  of  a  violation  of  engagement  witli  France. 
But  war  puts  an  end  to  all  treaties  and  engagements 
an  en<i  to  in  the  nature  of  a  treaty.  Therefore  if  we  had  un- 
fortunately found  ourselves  involved  in  hostilities 
with  the  United  States,  and  if  we  had  previously  had  a  treaty 
with  the  United  States  recognizing  the  principle  that  bellig- 
erents were  to  spare  one  another's  mercantile  marine,  the  very 
act  of  war  would  have  put  an  end  to  that  treaty,  and  it  would 
have  been  in  the  discretion  of  either  power  whether  or  no  they 
would  act  on  that  principle.  It  is  an  absurdity  to  suppose  that 
if  we  were  at  war  with  France  or  Russia  the  declaration  of 
Paris  would  have  any  binding  effect  upon  us  except  in  regard  to 
our  honor.  It  is  not  binding  by  international  law.  If  the  Unit- 
ed States  of  America  approve  so  highly  of  the  principle  of  not 
capturing  enemy's  ships  and  goods,  why  don't  they  establish  that 
principle  with  respect  to  the  Southern  states  ?  Here  is  a  fine 
opportunity  for  the  government  of  Washington  acting  on  that 
principle.  No  doubt  it  is  said  the  Southerners  are  rebels ;  but 
in  the  exchange  of  prisoners,  and  in  the  matter  of  blockades,  they. 

*■  Secretary  of  State  for  tlie  Dipartmeut  of  Wiir. 
f  Wheaton's  Elemeuts,  340. 


TO    BE    SAFE    AT    SEA.  65 

have  been  treated  in  all  respects  as  belligerents.  If  that  be  the 
case,  why  does  not  the  government  of  Washington  show  its  for- 
bearance in  not  capturing  enemy's  goods  ?  It  is  said  that  all  pri- 
vate property  is  spared  in  land  warfore.  I  must  meet  Property 
that  assertion  by  a  most  foi-mal  denial.  I  sav  that  ""*  fP'"ed 
by  the   laws  of  land  warfare,  as  recognized  by  the  % 

most  civilized  nations,  and  according  to  the  most  recent  prac- 
tice, private  property  is  not  respected  except  so  far  as  suits  the 
present  convenience  of  the  belligerent  armies.*  When  you 
conquer  a  country  you  conquer  its  government ;  and  when  you 
have  concpiered  its  government  you  have  conquered  that  agent 
by  which  the  country  can  be  plundered;  Perhaps  this  lan- 
guage might  be  somcAvhat  homely  ;  nevertheless  it  expressed  the 
exact  truth.  With  regard  to  the  sea  there  was  no  similar  en- 
gine ;  and  the  only  Avay  in  which  a  belligerent  could  exercise 
any  control  over  property  at  sea  was  by  capture.  The  real 
analogy  between  land  and  sea  warfare  was  efiected  by  the  dec- 
laration of  Paris  when  this  country  abolished  privateering.  We 
do  not  permit  a  single  private  individual  to  go  out  on  a  plunder- 
ing expedition.  At  the  same  time  we  do  not  restrain  the  army 
from  seizing  private  property  whenever  such  seizure  may  be 
necessary.  With  our  fleet  at  Portsmouth  or  Plymouth,  to  allow 
enemy's  ships  to  go  in  and  out  free  fiom  cai)ture  seemed  to  be 
carrvinjj  the  doctrine  of  forbearance  in  time  of  war  to  an  ab- 
surd  point." 

^   Mr.  T.  Baring  had  listened  with  some  surprise 
to  the  speech  of  the  right  honorahle  gen- 
tleman the  Secretary  for  War  (Sir  George     ing's  "opi- 

.  --         •11  nion. 

Lewis),  who  liad  said  that  no  compact  or 
treaty  made  during  peace  was  hinding  in  war. 
Sir  G.  C.  Lewis  (interrupting)  said —        .siro.  c. 

T     1        1  1    u  Lewis'  ex- 

"  This  IS  so  important  a  point  that  I  should  be  iiianation. 
sorry  if  any  misunderstanding  arose.    What  I  meant 

*  Here  the  right  honorable  gcntltman  gave  an  account  of  the  Duke 
of  Wellington's  proceedings  in  Spain  —  not  a  hostile  country,  but  a 
coiintry  we  were  assisting. 


6j3  PRIVATE    PROPERTY 

to  say,  and  what  I  believe  I  did  say  was,  that  I  conceived  the 
declaration  of  Paris  to  be  binding  as  between  this  country  and 
neutrals  during  the  existence  of  war;  and  to  be  equally  bind- 
ing with  a  treaty,  though  it  was  only  a  declaration ;  but  that  if 
we  were  at  war  with  any  of  the  parties  to  that  declaration, 
^en,  like  other  treaties,  it  would  cease  to  have  a  binding  ef- 
fect as  regards  that  belligerent," 

„    „  .    .        Mr.    Barins:   resumed,    and    made   the 

Mr.  Barings  ir>  ' 

opinion.        followino;  observations  — 

"  The  attorney-general  had  treated  the  Paris  declaration  as 
an  accomplished  fact,  which  mu^st  be  adhered  to.    In 

Paris  decla-  '  ,  ,  •  ,  -n. 

ratit.il  binii-  the  case  or  a  war  between  this  country  and  r  ranee, 
"'^''  is  it  not  evident  that  the  Avhole  of  your  carrying- 

trade  would  pass  into  tiie  hands  of  neutrals  ?  What  country 
has  most  commerce  afloat  ?  most  property  to  be  seized  ? 
Surely,  England.  What  country  would  gain  most  by  the  pres- 
ervation of  that  property?  England.  What  country  would  be 
so  much  injured  in  war,  through  her  commerce,  as  England? 
There  is  not  the  slightest  doubt  that  you  ought  gravely  to  con- 
sider the  motion  before  us.  He  did  not  see  Avhy  a  congress 
should  not  meet  and  discuss  tiiis  question,  in  the  interest  both 
of  commerce  and  of  Europe.      He  firnilv  believed 

Principle  of  ...  ...  •  -i       i  i 

freed<»ni  must  the  principle  ot  this  motion  would  prevail,  although 
^'''^'''  it  might  be  resisted  by  the  present  administration; 

for  he  felt  confident  that  the  time  would  come  when  the  House 
would  not  turn  a  deaf  ear  to  the  prayer  addressed  to  it  by  the 
great  majority  of  the  commercial  interests  of  the  country." 

Adjourned  Debate,  March  17. 

Mr.  Lindsay,*  in  consequence  of  the  indisposi- 
Mr. Lindsay's  ^lou  of  Mr.  Cobdeu,  resumed  the  ad- 
opiniou.        journed  debate  — 

"  In  the  event  of  a  war,  it  being  clear  that  all  our  merchan- 
dise would  be  sent  from  our  shores  in  the  ships  of  other  nations, 

*  Member  for  Sunderland. 


TO    BE    SAFE    AT    SEA.  67 

it  was  equally  clear  that  our  shipping  would  be  obliged  to  lie  in 
our  harbors  completely  unemployed ;  so  that  the  argument  that 
we  required  our  fleet  to  protect  our  commerce  and  shipping  fell 
to  the  ground.     In  the  event  of  a  war  with  France,  the  mer- 
chandise of  that  country  would  be  conveyed  in  neutral  bottoms, 
so  that  our  fleet  would  be  of  no  value  in  the  way  suppose^. 
Vast  changes  had   taken  place  since   the   last  great   war.     In 
1814  the  total  amount  in  value  of  our  imports  and  exports  was. 
about  60,000,000/.     The  value  in  18G0-61  was  close  upon  300,- 
000,000/.     Our  shipping  in  1814  was  about  1,000,000  tons;  it 
was  now  near  5,000,000,  of  which  500,000  consisted 
of  steamships.     Did  anybody  really  suppose  that  we      J?oJ|',,,^not 
could  have  a  fleet  sufiiciently  numerous  and  power-     pi-  tcct  our 

r  \    4.  iiii.  ,  ^-,^.  commerce. 

lul  to  protect  tiiat  vast  commerce  ?     If  the  cry  in 
war  was  to  be  'burn,  plunder,  and  destroy,'  we  had  more  to 
lose  than  any  other  nation  ;  and  in  the  event  of  war,  would  be 
by  far  the  largest  sufferers." 

The   lord   advocate   of    Scotland*   delivered   a 
clear   legal   speech,   in   course   of  which 
he  asked  a  question  not  yet  clearly  an-      ThUues 
swered,   namely:    What  was  to  become      "''""""" 
of  blockades,  supposing  the  views  of  the  honor- 
able mover  carried  — 

"  The  principles  advanced  by  the  supporters  of  the  resolution 
would  necessarily  lead  to  the  abolition  of  blockades.     The  rules 
of  war  entitled  us  to  destroy  our  enemy's  commerce.     If  we 
gave  up  that  right,  could  we  then  maintain  the  right 
of  blockade,  which  was  an  infinitelv  strono-er  inter-        Y'^^'^^  ''" 

f.  ...  •  >■?  blockade. 

terence  with  private  property  than  the  right  of  cap- 
ture at  sea  ?" 

Sir  Stafford  ^N'orthcotef  doubted   whether  the 
amount   of    our   warehousiuii^-trade    and  «.  «  ..  .. 

O  bir  f*.    >nrtri- 

the  extent  to  which   our  carrying- trade  c^'^'-^p""""- 

*Mr.  Monerieff,  member  for  Leith.  f  Member  for  Stamford 

6 


68  PRIVATE    PROPERTY 

would  be  eiulanorered,  in  the  event  of  war,  liad 
been  sufficiently  considered  — 

"  The  phenomena  of  the  last  war  had  been  spoken  of.     But 

(ireat  Britain  would  not  be  able  to  put  down  neu- 

^aillniot        ^^^^^  "ow.     Many  close  trades  which  then  existed 

now  i.e  put  -were  now  thrown  open  —  our  colonial  trade  for  ex- 
down.  ^  ^         1  • 

ample.     Commerce  always  sought   the  safest  ships, 

and   English  vessels  were  then   the  safest.     But   the    neutral, 

and  not  English  vessels,  would  now  be  the  safest.     A  war  with 

France  would  threaten  our  very  existence.     Both  sides  would 

have  recourse  to  neutral  vessels.     This  would  cause  little  injury 

to  France,  but  the  effect  on  England  would  be  ruin- 
Could   mat-  -,,T  1  .  ,  r         •    • 
ters  rest  as     ous.      Were    her   majesty  s   government   ot    opinion 

lej  Mere.      ^^^^   ^^j^   matter  could   safely  rest  where    it  was? 

They  had  rashly  concluded  certain  arrangements  with  certain 

powers;  while  the  most  important  power  stood  aloof.     France 

would  be  perfectly  safe.     All  that  would  be  stopped  would  be 

British    shipping.       The    government   would   surely 

The  Paris  1  1       o  e  J 

deciiinition      not  contend   that   this   treatv  might   be  set  aside, 
im  iiig.  p.j  ^j^^  noble  lord  at  the  head  of  the  government 

adopt  the  doctrine  that  this  treaty  might  be  broken  as  between 
the  nations  who  might  go  to  war  ?  He  apprehended  great  in- 
conveniences and  dangers  from  the  treaty  of  Paris.  In  addition 
to  a  war  with  France,  that  treaty  would  probably  bring  us  into 
difficulties  with  the  United  States.  He  thought  it  impossible  to 
accept  the  principles  laid  down  by  the  noble  lord  at  Liver[)ool, 
without  considering  a  great  many  other  questions.  Tlu'v  all 
knew  that  there  were  stipulations  and  treaties  which  war  im- 
mediately put  an  end  to ;  but  were  all  treaties  made  even  in 
contemplation  of  war  to  be  set  aside  ?•  If  so,  they  were  going 
back  to  a  state  of  barbarism.  Chancellor  Kent  said  that  if  a 
treaty  conteinj)lated  a  state  of  future  war,  it  preserved  its  force 
when  the  rupture  took  place;  and  the  obligation  of  keeping 
faith,  so  far  from  being  extinguished,  became  increased,  from 
the  increasing  necessity  for  it.  That  was  a  matter  which  ought 
to  be  cleared  up ;  whereas  it  was  now  left  in  studied  vagueness. 


TO    BE    SAFE    AT    SEA.  QQ 

They  had  been  told  that  there  was  no  protection  for 
private  property  on  land.      The  advocates  of  the  Z'fZli-'^^ 
Danish  claims  would  be  rather  startled  at  such  a  'Jp'»i"'n   of 
change  of  opinion  on  the  part  of  the  government.   ^''''  '""'^'"''' 
The  opinion  of  her  majesty's  attorney-general  and  of  the  chan- 
cellor of  the  exchequer,  last  year,  was  that  the  claimants  who 
had  lost  property  on  land  were  entitled  to  have  their  losses 
made  good ;    but  that   there  was  a  bi-oad  distinction    between 
property  taken  on  land,  and  propei-ty  taken  on  sea ;  and  that 
compensation  for  the  latter  was  not  to  be  given.     But  what  did 
the  Secretary  for  War*  tell  them?     Why,  that  this  distinction 
couhl  not  for  a  moment  hold  water.     He  had  seen  it  stated  that 
there  was  a  better  reason  assigned  for  maritime  plunder  — that 
it  was  more  out  of  sight,  and  caused  less  indignation  than  plun- 
der by  land.f     There  was  some  truth  in  that.     He  did  not  ig- 
nore the  humanitarian  argument ;  but,  speaking  as 
an  Englishman,  he  thought  that  the  interests  of  his     Ar  an  Eng- 
own  country  were  of  all    things  to  be  considered.     wuui.Tsup! 
He  was   not   prepared   to   endorse   the  views   pro-     motion.^ 
pounded   by  his    honorable  friend  the  mover   until 
he   saw  more  distinctly  how  they  could    be  accommodated   to 
the  other  questions  in  connection  with  the  subject  which  they 
had  raised.     The  advice  which  was  given  by  Bail  lie  Nicol  Jar- 
vie,  or  rather  by  his  father,  to  the  effect  that  one  should  never 
put  his  arm  out  so  far  that  he  could  not  draw  it  back  again,  was, 
he  thought,  quite  applicable  under  the  present  circumstances." 

Mr.  Gowert  dissented  from  the  motion.    >!>-.«ower-8 

diMsent. 

Mr.  Cave§  expressed  his  general  con- 

.    -,       ^  ^^r.  Cave'8 

enrrcnce  with  the  views  of  the  mover.  "''^"^• 

Sir  F.  Goldsmidtll  observed  that  the  resolutions 
of  the  honorable  member  for  Livei-pool 
would   not  mitigate  the   real  horrors  of  s^nidrsop.'n': 
war—  *""• 


*  Sir  George  Lewis.  g  Member  for  Shoreham. 

fSee  siijiva,  p.  11.  ||  Member  for  Reading. 

J  Member  for  Bodmin. 


TO  TKIVATE    PROPERTY 

"  Their  only  effect  would  be  to  relieve  our  merchants  from 

a  somewhat  hi^ihcr  rate  of  marine  insurance  in   time  of  war. 

AVars  would  be  best  prevented  by  a  firm  and  temperate  policy. 

Their  hardships  were  unavoidable.     But  those  hard- 
Captures  not         .  ' 

to  lie   leliii-    ships  would  be  aggravated  by  our  surrender  of  the 

nuished.  •    i  .      ,•  •,-  ,. 

right  of  maritmie  capture. 

Lord   IlariT    Vaue*    hoped    that  '  the    motion 
,    ,  „        would  not  be  pressed  to  a  division,  thous^h 

Lont    Ilarrv  *^  '  o 

Vane's  opin-  ]^q    admitted    that   the   present   state   of 

ion.  1 

maritime  international  law  was  extremely 

Law  now  un-  »' 

Hutisfactory.    ^  n Satisfactory. 

Mr.  Buxton's       -^^''-    Biixtonf   supported   the   motion. 

opinion.  JJq   g.^J^;!  ^|-,^|. 

"  If  the  proposition  now  made  were  agreed  to,  we  should  be 
able  to  blockade  an  enemy's  ports  with  far  greater 

wouhiTim-"     efficiency  than  at  present.^     We  should  be  able  to 

prove  block-  concentrate  our  fleets  upon  the  enemy's  coasts.  At 
the  same  time,  our  enemy,  not  being  equal  to  us  in 

naval  force,  could  not  blockade  our  ports.     His  navy  Avould  be 

practically  useless  to  him." 

Mr.  Newdegate§  said  that  when  the  Paris  de- 
claration  came  to  be  tested  b}^  war,  he 
gate's  opin-    was   afraid  that  this   countr\^  would  be 

ion.  .        *^ 

sorely    tempted    to    set    it    aside.      lie 

trusted  that  the  practical  character  of  the  English 

people   would  guard  them  from  the  de- 

Paris  dechi-       i        •  ,.  ,1  1         • 

ration  not      lusiou  ot  pcrpctual  pcacc  :   remembering 
how  many  prophecies  on  this  subject  had 
been  falsitied  in  the  last  twelve  years. 

*  Member  for  Hastings.  f  Member  for  Maidstone. 

J  What    greater    iiiterru])tion    to    coaunerce  ean  be   imagined  than 
blockades  ?  See  the  lord  advocate's  speech,  Hupru,  p.  67. 
^Member  for  N.  Warwickshire. 


TO    BK    SAFE    AT    SKA.  71 

Mr.  Massev*  as^reed  that  the  state  of  „   „ 

^  ~  Mr.  Massev  s 

international  law  was  unsatisfactory —      «pi''ion. 

"  Formerly,  belligerents  carried  on  war  in  a  form  so  harsh 
and   oppressive    that    neutrals    suffered    almost    as 
much  as  the  enemy,  and  protested  asraiust  the  tyranny    ^^^^'  ""^^  """ 

'    ,  "^       ^  "  •'      satisfactory. 

to  which    they  Avcre    subjected.     This  country  had 
sometimes  pressed    too  heayily  on  neutrals.     But   it   had   now 
gone  to  the  other  extreme ;    and  by  a  sort  of  self- 
denying  ordinance,  had    transferred  to  the  neutral      n.ving  ordi- 
the  whole  advantage.      The  old  system  of  convoys 
for  merchant  ships  was  exploded.     No  war  hereafter  could  be 
greatly  protracted.    Our  ship-owners  were  treated  with  derision, 
as  though  they  were  unduly  obtruding  themselves  and  their  in- 
terests.     The  answer  they  received  was,  '  You  must  submit  to 
the  exigencies  of  war.      It  is  selfish  of  you  to  interpose  when 
"■reat    interests   are    at   stake.'      That   was   stranjje   lanjjuaffe. 
When  we  spoke  of  war,  we  always  had  in  mind  the  possibility 
of  a  war  with  France,  in  which  event  we  should  immediately 
blockade  the   French  ports,  and  her  merchant  shipping  would 
immediately  disappear  from  the  seas.     But  then  the  large  war 
navy  of  France  would  prey  upon  the  residue  of  our  commerce 
not  absorbed  by  neutrals.     He  could  conceive  noth- 
ing more  to  the  interest  of  this  country  than  to  go     Tlie  motion 

®  ...  ^  o         would   com- 

to  the  length  which  this  motion  recommended,  and     piete  tiie 

•  l*iir i s  (J Gclfv* 

thus  render  the  treaty  of  Paris  complete  and  consist-     ration. 
ent.     It  had  been  denied  with  great  emphasis  that 
in  time  of  war  there  was  any  respect  for  private  property  on 
land.     That  was  a  new  doctrine  to  him.     There  was    ,..     ^    ,     , 

AN  ar  by  land 

nothing  better  established  than  the  striking  differ-    and  by  sea 

ence  between  the  mode  of  carrying  on  war  by  land 

and  by  sea.      No  country  was  ever  brought  to  terms  of  peace  by 

the  destruction  of  its  commerce.     The  military  glory  of  France 

culminated  to  its  highest  point  after  her  Hag  had  disappeared 

entirely  from  the  seas.      It   had  been  said    that  a 

treaty  might  be  abrogated  by  war.    But  to  say  that     tirnpiating 

a  treaty,  specially  providing  for  the   exigencies  of     [^"^..^'r"'^^ 

war,  should  be  annulled  in  war,  would  be  to  repre- 


«  Member  for  Salfurd. 


72  PRIVATE    PROPERTY 

sent  the  powers  who  were  parties  to  it  as  acting  like  children. 
If  one  of  these  powers  should  attempt  to  break  it,  a  power  so 
faithless  would  be  visited  by  the  condemnation  of  Europe ;  and 
no  advantage  would  be  gained  by  infraction  of  the  treaty." 

Mr.  Beiitinck*  desired  to  know  whether  the 
Mr.  Bon-  house  or  the  government-  meant  to  say 
i<.n.  that  this  country  would  be  bound  by  the 

Were  we       declaration  of  Paris  in  the  event  of  w^ar. 

bound  by 

the  Paris      Jje  would  ask  his  honorable  friend  not  to 

declara- 

tiuu?  press  his  resolution. 

Mr.  Bright t  remarked,  that  wlien  the  Russian 
Mr.  Bright's  ^'^^^^  bcgau,  thc  govemmeut  advised  the 
opinion.  Queen  to  issue  the  proclamation  J  to 
which  reference  had  been  made  more  than  once  — 

"  That  proclamation  did  precisely  what  the  declaration  of 
Paris  two  years  afterward  did  for  all  future  wars,  should  such 
arise.     It  was  found  that  the  old  policy  was  impossi- 
poiicy  nn-        blc.     Uulcss  you  could  blockadc  every  port  of  Rus- 
sia, American  mercantile  ships  would  carry  on  trade 
with  that  country  as  before  the  war ;  and  if  they  had  Russian 
cargoes  in  those  ships,  the  Americans  would  not  have  permit- 
ted—  he   spoke   advisedly  —  without    remonstrance, 
The  Ameri-     and  probably  without  resistance,  the  exercise  of  a 
have  resist-      right  of  Search,  and  the  taking  from  them  the  prop- 
ed  searcii.       gj-ty  of  Russia,  then  the  enemy  of  England.     If  the 
government  had  not  taken  the  course  which   they 
did  by  the  Queen's  proclamation  of  1854,  in  six  months,  or  less, 
we  should  have  been  involved  in  a  serious  discussion  with  the 
United  States,  which  might  have  ended  in  adding  to  the  calam- 
ity of  the  then  existing  war  with  Russia  the  calamity  of  a  war 
with  the   United  States.     He  held  this,  after  considering  the 
matter,  that  the  course  taken  by  the  noble  lord§ — for  he  was 


*  Member  from  West  Norfolk.  J  See  infra,  p.  84. 

■j-  Member  for  Birmingham.  ^  Lord  Palmerston. 


TO    BE    SAFE    AT    SEA.  73 

prime  minister  in  1856  when  the  congress   met  at 

Paris  —  was  one  which  he  could  not  have  avoided;  ['io'„'^f,^av'!)'ilu 

and  as  it  had  become  inevitable,  it  was  irrevocable  *^^'^^  ^^'\  '•'■ 

_  _  ^  revocable. 

now.  The  Liverj)ool  chamber  of  commerce,  in  a 
petition  which  they  presented  to  this  house,  said  that  such  a 
proposal  as  that  of  the  honorable  member  for  Liverpool  would 
shield  the  shipping  interests  of  this  country  from  greater  injury 
than  the  fleet  of  any  maritime  power  could  inflict  on  them  in 
time  of  war.  He  agreed  that  it  was  wrong  to  use  such  lauKuajje 
as  had  been  used  with  respect  to  the  shipping  interest,  he  did 
not  say  within  the  walls  of  that  house,  but  out  of  doors.  Surely 
the  shipping  interest  had  as  great  a  right  to  be  considered  as 
the  great  cotton-spinners  or  the  land-owners,  or  any  other  great 
class  in  the  country.  The  proposal  therefore,  of  the  honorable 
member  for  Liverpool  was  one  which  could  not  be  got  rid  of 
by  the  off-hand  declaration  of  a  minister,  however  influential. 
The  proposal  was  a  very  sim])le  one.  It  merely  said,  you  have 
freed  the  cargo,  why  not  include  the  ships?  He  anticipated 
that,  instead  of  provoking  Avar,  this  proposal  would  render  its 
occurrence  less  probable ;  while  if  unhappily  it  did  arise,  it 
would  be  likely  to  be  brought  to  an  earlier  termination.  At  all 
events,  it  must  be  admitted,  the  proposal  nvas  hu- 
mane and  beneficial;  and  one  which  followed  as  a  asoquence'to 
necessary   consefiuence    of   the    Paris    declaration.    V'^  ^''l'*' 

•'  1  ^  declaiatum. 

The  Secretary  for  AVar  *  had  made  a  speech  which 
he  had  heard  with  great  surprise  and  regret.  What  was  it  that 
the  jurist  Wheaton  said  on  the  question  as  to  the  fate  of  treat- 
ies in  time  of  war  ?  He  said  that  when  treaties  were  meant  to 
provide  for  war,  it  would  be  against  every  principle  of  just  in- 
terpretation to  hold  them  extinguished  by  war.  So,  Dr.  Phil- 
limore  said  that  the  general  maxim  that  war  abrogates  treaties 
must  be  subject  to  limitation  in  one  case,  namely,  the  case  of 
treaties  which  provide  for  the  breaking  out  of  war  between  the 
contracting  parties.  But  what  was  done  at  Paris  in  1856  was 
not  an  ordinary  treaty,  but  the  general  concurrence  of  the  civil- 
ized nations  of  Europe,  enacting  a  new  law  which  siiould  be 

*  Sir  George  Lewis. 


74  PRIVATE    PROPERTY 

admitted  and  accepted  in  all  future  time  —  an  agreement  which 
he  undertook  to  say,  if  the  government  ever  attempted  to 
break,  they  would  call  down  upon  themselves  the  condemna- 
tion of  every  intelligent  man  in  every  intelligent  country  of 
the  globe." 

The   solicitor-genei'al*    jiddref^sed    hinisclf,    not 

only  to  the  coniniercial  interests  likely  to 

geiK-nUs  "'    be  afiected  ])v  tlie  pi'oposed  change,  but 

opinion.  ,  ,  '  ,  .       .  .  . 

also  to  those  moral  and  patriotic  consid- 
erations which,  though  less  evident,  are  dee[)ly 
involved  in  the  discussion.     lie  said — 

"  Two  arguments  were  drawn  from  the  declaration  of  Paris. 

In  the  first  place,  it  was  said  that  there  were  no  rea- 
Tsvo  argu-      j-^jj^g  j,^  favor  of  the  propositions  there  laid  down 

which  did  not  equally  apply  in  favor  of  the  proposi- 
tion of  the  honorable  member  for  Liverpool.  The  second  argu- 
ment was,  that  the  effect  of  the  declaration  of  Paris  would  be  to 
transfer  a  large  portion  of  the  carrying-trade  to  neutrals,  and  to 
inflict  serious  injury  on  our  shipping-trade,  and  on  our  mercan- 
tile interests  jreneraliv.  Those  two  points  embodied  the  sum 
and  substance  of  almost  all  that  had   been  said.     The  first   of 

those  arguments  it  was  not  difficult  to  dispose  of.     It 

Tlie  Paris  =•  * 

dccianitioii  was  casy  to  show  that  there  were  reasons,  clear  and 
portTiiis"''  solid,  for  that  portion  of  the  declaration  of  Paris  as 
motion.  ^Q  giving  up  the  right  to  take  enemy's  goods  out  of 

neutral  ships,  Avhich  would  not  in  any  degree  whatever  apply 
in  favor  of  the  proposition  to  allow  enemy's  goods  on  board 
enemy's  ships  or  enemy's  ships  themselves  to  go  free.  Neutrals 
were  in  a  position  which,  on  grounds  not  only  of  common  justice, 
but  of  the  mutual  interest  of  belligerents,  entitled  them  to  great 
consideration.  The  annoyance  and  disturbance  of  neutrals  by 
visiting  and  searching  their  ships,  by  interference  with  their 
trade,  by  taking  violently  away  from  their  ships  goods  which 
they  had  legally  and  justifiably  admitted  on   board — all  these 


*  Sir  RjundoU  Palmer,  who  has  revised  this  speech. 


TO    BE    SAFE   AT    SEA.  75 

were  acts  in  a  high  degree  injurious  to  persons  who 

had  the  strongest  claim  on  the  consideration  of  na-  ^eutrais  bad 

^        .  tlie  strongest 

tions  in  amity  with  them,  though  at  enmity  with  claim  to  con- 
each  other :  and  at  the  same  time  tended  in  a  h\<r\i 
degree  to  involve  those  nations  in  war  with  neutrals,  and  to 
draw  neutrals,  however  unwilling,  into  the  contest.  Thus  there 
were  various  reasons  why  concessions  should  be  made  to  neu- 
trals, many  of  the  most  important  nations  of  Europe,  as  well  as 
the  United  States  of  America,  having  in  fact  long  previously 
made  treaties  bearing  on  these  questions.  But  it 
would   be  seen  that  these  reasons  did  not  in    any    N«ttobeliig- 

erentH. 

way  operate  in  favor  of  making  the  same  concessions 
to  belligerents.  The  second  argument,  as  to  the  transfer  of  the 
carrying-trade  to  neutrals,  was  much  more  important,  and  in- 
volved considerations  of  much  greater  difficulty.  It  must  never 
be  forgotten  that  governments  and  nations  had  to  deal  with  a 
balance  of  evils  and  inconveniences.     The  particu- 

•1         1  •   1    •  1  1  1         •  ^''®   conces- 

lar  evils  which  it  was  supposed  would  arise  from  the  sion  to  neu- 
operation  of  the  Paris  declaration  in  favor  of  neu-  ^o  uttie 
trails  he  hoped  and  believed  were  greatly  exag-  ''''^'■"'• 
gerated.  But  the  house  would  permit  him  to  put  before  it  the 
other  side  of  the  question,  and  consider  what  were  the  evils 
that  might  arise  from  the  adoption  of  the  principle  recommended 
by  the  honorable  member  for  Liverpool.  Now,  it  had  been 
said  that  it  was  of  no  use  to  refer  to  the  old  established  law 
of  nations,  for  that  we  had  introduced  a  new  principle  by  the 
declaration  of  Paris.  But  that  he  denied.  We  had 
given  up  certain  belligerent  rights,  but  had  intro-  a  new  prin- 
duced  no  new  principle.  But  this  motion  asked  us  *^'''  ^' 
to  give  up  principles  hitherto  of  cardinal  and  fundamental  im- 
portance in  the  law  of  nations.  If  there  were  any  principle  of 
the  law  of  nations  more  cardinal  than  another,  it  was  that  in 
w&,r  governments  were  identified  with  their  people — that  you 
could  not  make  war  upon  the  government  and  have  peace  with 
their  people — that  the  people  were  bound  up  with  the  govern- 
ment and  the  public  interests  of  the  nation,  for  better  or  worse. 
This  principle  involved  in  itself  the  very  highest  and  most  mo- 
mentous considerations — the  interests  of  patriotism  and  the  inter- 


7(3  PRIVATE    PROPERTY 

ests  of  peace.  Pie  dreaded  to  tliink  wliat  might  be 
tiu°prop°sed  the  effect  of  admitting  the  principle  of  a  political 
principle.  ^^^j,  ^j^^j  ^  commercial  peace.  If  anything  could 
sap  the  patriotism  of  a  nation,  it  would  be  such  a  state  of  things. 
The  merchants  of  England  had  on  many  occasions  shown 
their  patriotism.  But  under  what  system  ha«l  that  patriotism 
been  fostered  and  maintained  ?  Was  it  not  a  system  that  in 
war  bound  up  the  English  merchants  with  their  government, 
which  made  them  fellow-sufferers  in  its  reverses,  partners  in  the 
common  stake,  and  looking  to  its  success  as  the  source  or  return 

of  their  own  prosperity  ?     But  he  ventured  to  say 

It  would  ...  . 

jeop  aidize  that  the  patriotism  of  the  mercantile  class  would  be 
tile  patriot-  placed  in  danger  if  they  were  indemnified  against 
'^"^'  the  consequences  of  war,  and  deprived  of  their  gen- 

eral interest  in  the  maintenance  of  peace.  What  was  the  great- 
est check  we  had  against  unjust  and  unnecessary  wars  ?  Was 
it  not  the  burdens  they  imposed  ?  And  if  a  system  were  intro- 
duced which  would  admit  of  carrying  on  war  without  those  bur- 
dens, could  it  be  supposed  that  the  interest  of  merchants  would 
be  the  same  as  now  in  preventing  war,  or  in  bringing  about  the 
restoration  of  peace  ?  If  the  ship-owners  should  suffer — and  he 
should  regret  if  they  did — by  the  present  state  of  the  law,  they 
certainly  would  not  have  an  increased  interest  in  the  mainten- 
ance of  peace  if  the  system  of  political  war  and  commercial 
peace  were  introduced.  But  the  effect  of  the  change 
war'T'bfst'^  would  be  Still  more  important  with  regard  to  other 
preventive.  nations  whosc  governments  might  be  more  likely  to 
undertake  unjust  and  aggressive  warfare,  than  with  respect  to 
ourselves.  What  was  the  strongest  check  t6  wars  of  aggression 
and  military  ambition  ?  It  was  the  sufferings  that  must  thereby 
be  entailed,  and  the  fear  that  the  people  would  not  endure  them. 
But  if  you  made  that  burden  light,  you  would  be  giving  facilities 
to  schemes  of  aggrandizement.  The  people  would  become  l(^ss 
vimlant:  and  bv  the  continuance  of  trade  even  the  sinews  of 
war,  on  which  princes  depended,  would  be  more  easily  supplied. 
But  it  was  said  that  what  was  now  asked  was  to  reduce  maritime 
war  to  the  position  into  which  the  progress  of  civilization  had 


TO    BE    SAFE    AT    SEA.  77 

brought  military  warfare.    It  was  perfectly  true  that 
land  warfare  had  received  great  mitigation;  but  that        oTismd^ 
had  taken  place  as  much  under  the  influence  of  con-        wiutare. 
siderations  of  interest  as  from  any  mere  motives  of  humanity. 
The  best  way  for  an  army  to  maintain  itself  was  to  be  on  goo<l 
terms  with  the  people  of  the  country  which  it  was  occupying. 
The  commissariat  could  not  get  supplies  if  we  were 
to  apply  the  princi})les  of  marine  warfare  to  opera-       Oiviuml  of 
tions  on  land.     But  no  nation  had  ever  done  that 
with  respect  to  land  operations  which  was  now  proposed  as  to 
naval  warfare.     No  nation  had  entered  into  engagements  de- 
priving its  generals  and  armies  of  the  power  of  taking  private 
property  by  land  whenever  the  nature  of  the  operations  or  the 
exigencies  of  the  war  might  make  it  necessary  or  expedient  to 
do  so.     There  was  all  the  difference  in  the  world  between  a 
moderate  use  of  legal  poAvers  and  the  total  renunciation  of  them. 
And  the  objects  of  naval  operations  were  different  from  those  of 
laind  warfare.     By  sea  you  endeavor  to  drive  off  the  fleets  and 
navies — mercantile  and  warhke — of  the  enemy.     Could  any  one 
say  that  that  had  no  tendency  to  cripple  him,  to  bring  him  to 
terms,  and  to  produce  a  peace  ?     It  was  evident  that 
if    you    adopted   this   proposal   you    would   deprive    ^[|^^  wo,,m*"' 
naval  warfare  of  half  the  field  of  its  operations;  and    weaken  a 

.         .         iiiiviil  power. 

how  could  that  be  done  without  greatly  reducing  in 
war  the  strength  and  importance  of  a  naval  as  compared  with  a 
military  power  ?     What  would  there  be  left  for  our  ships  to  do  ? 
They  would  be  reduced  to  defensive  operations,  and, 
as  has  been  suggested,  to  blockades  for  the  purpose       of  arnie.i 
of  shutting  up  the  armed  vessels  of  the  enemy  in       vessels 
their  ports ;  and,  if  the  enemy's  ships  did  not  attempt  to  come 
out  a  kind  of  stalemate  would  be  the  result.     Nor  was  it  possible 
to  draw  a  safe  line,   when    maritime  power  was  in   question, 
between    the   armed  and    the   mercantile   marine  of  a  nation. 
Even  for  the  direct  purposes  of  war  the  mercantile 
marine  was  of  the  most  obvious  imj)ortance ;  it  was      pl^'rS'n^flJr. 
not  only  a  nursery  of  seamen,  but  large  mcrciiant      mi.i.ibic  in 
ships   might   be    converted   into  ships-of-war ;    mer- 
chant ships  might  be  taken  up  as  transports  for  troops,  or  for  the 


78  PRIVATE    PROPERTY 

commissariat  service ;  and  in  case  of  an  invasion  they  would  be 
more  especially  available.  If  we  permitted  a  hostile  maritime 
power  to  accumulate  a  great  fleet  of  mercantile  vessels,  they 
might  be  turned  against  us  with  the  most  important  results.  He 
would  now  come  to  the  point  of  blockade,  which  was  so  tenderly 
touched  upon  by  his  honorable  friend,  the  member  for  Stamford. 
The  (honorable  member  for  Liverpool  had  said  he  wouhl  not  in- 
terfere with  blockade,  and  other  honorable  members  had  said  the 
same.  It  would,  however,  be  \ery  difficult,  upon  the  principle 
of  this  proposition,  to  save  the  right  of  blockading  commercial 
ports.     Because  what  was  done  by  blockading  com- 

Coinmercial  Tnercial  ports '?  It  Avas  obstructinjj  trade :  it  was 
blockades.  _   ^  _  ^  "  ' 

destroying  the  business  of  great  numbers  of  persons 

who  trade  with  those  ports,  and  of  the  inhabitants  of  those  ports, 

so'far  as  concerns  their  commerce  with  foreign  nations.     Is  not 

that  the  very  thing  which  was  done  on  the  seas  when  war  was 

made  agrainst  a  mercantile  marine  ?     But   he   foresaw  that  as 

soon  as  the  proposition  now  under  discussion   was  established 

there  would  spring  up   an    argument  against  blockades  of  this 

kind.  What  could  be  the  use  of  them,  it  would  be 
beo^me  iu-  said,  when  your  enemy's  sliips  could  go  to  a  neutral 
effective.  port,  and  when,  if  they  put  into  the  Scheldt  or  Elbe, 
or  some  port  of  Prussia,  the  railroads  would  carry  the  goods 
over  neutral  countries  much  more  easily  than  ships  could  convey 
them.  It  would  therefore  be  said  to  be  a  most  idle  thing  to 
resort  to  blockades,  if  they  might  thus  be  defeated.  The  Liver- 
pool petition  spoke  only  of  a  considerable  part  of  the  trade 
being  likely  to  find  its  way  into  neutral  hands.  That,  to  some 
extent,  would  no  doubt  be  the  case.  But  we  could  not  expect  to 
accomplish  the  objects  of  war  without  suffering  serious  evils  ;  nor 
was  it  clear  that  it  would  be  for  the  true  interest  of  peace  or 

civilization  if  we  could.     As  to  the  declaration  of 

\\  6    would 

not  recede  Pans,  we  were  not  likely  to  go  back  from  it.  It 
dociaration  could  hardly  be  supposed  that  the  Secretary  for 
of  Pans.  War*  had  meant  for  a  moment  that  we  should  think 

of  receding  from  it.      Very  lately  we  had  been  threatened  with 

*  Sir  Goorgo  Lewi;<. 


TO    BE    SAFE    AT    SEA.  79 

the  danger  of  war  with  a  power  not  bound  by  the  declaration  of 
Paris.  Was  there  tlien,  among  the  merchants  of  this  country, 
any  flinching  from  that  emergency?  Did  the  people  of  England 
look  that  danger  in  the  face  as  if  they  were  afraid  of  ruin  ?  No  ; 
neither  from  Liverpool  nor  Manchester,  nor  from  any  other  part 
of  the  kingdom,  did  any  such  timid  accents  proceed.  There 
was  not  the  least  sign,  from  one  end  of  the  kingdom 
to  the  other,  of  any  apprehension  that  the  moment      ^^"^h  >t 

'  '/        I  t  round  our 

we  entered  into  the  contest,  with  the  declaration  of     necks  we- 

fc'l t    Sd'CllG 

Paris  round  our  necks,  our  power  would  be  gone,  or 
our  mercantile  marine  destroyed.     He  therefore  insisted  that  we 
were  not  wrong  in  placing  faith  now  as  much  as  heretofore  in 
the  patriotism,  the  resources,  and  the  elasticity  of  the  country." 

Mr.    Walpole*    concurred    generally   with    the 
views  of  Sir  Ronndell  Palmer ;    but  ex-  „  ,^  ,    ,  , 

'  Mr.  Walpole  s 

pressed    strong   dissatisfaction   with   the  "P'nJoQ- 
declaration  of  Paris.     He  said — 

"  We  have  abundant  evidence  to  show  that  when  we  entered 
into  the  declaration  of  Paris  without  the  concurrence 

...  1  •    i  •■•  Declaration 

01    America  we  put  our  merchants  into  a  position    ofparismis- 
which  they  ought  not  to  have  been  compelled  to  oc-    <^'i'«^'^"s- 
cupy.    Although  we  had  the  finest  ships  in  the  Chinese  seas,  the 
mere  apprehension  of  a  war  deprived  them  of  the  trade  to  which 
they  were  entitled,  and  transferred  it  to  the  United  States  be- 
cause they  were  not  likely  to  be  engaged  in  hostilities.     Could 
such  a  state  of  things  be  endured  without  attempting 
to  put  the  subject  on  a  more  satisfactory  footing  ?        continue? 
The  honorable  member  for  Birmingham  told  us  that 
the  legitimate  consequence  of  the  declaration  of  Paris  is  that  pri- 
vate property  shall  be  pronounced  free,  even  in  belligerent  ships. 
His  honored  and  learned  friend  the  solicitor-general  had  very 
justly  remarked  that  if  we  carried  the  principle  so  far  the  same 
logic  will  lead  to  the  abolition  of  commercial  blockades.     His 


*The  Right  Hon.  Sponcer  Horatio  Walpole,  member  for  Cambridge 
University. 


80  PRTVATE    PROPERTY 

object  in  rising  was  to  elicit  from  the  government 
He  (lePiied      whether  this  one-sided  declaration  was  to  be  amend- 

an  answer. 

ed  and  placed  on  a  better  footing." 

Lord  Palnierstou   had   no   hesitation   in  saying 
tliat  to  2:0  back  to  tlie  parties  who  assem- 

Lord   Palmer-  ~  *• 

eton'8 opinion,  bled  at  Paris,  and  to  ask  them  to  rescind 

those   resolutions   would    be    a   course  which    no 

gentleman  could  seriously  think  the  ffov- 

Paris  .lecia-  emmcnt  was  likely  to  adopt,  or  that,  if 

ration  inipos-  ^  *•  _ 

"'^i*^-  adopted,  the  government  was    likely  to 

get  the  other  parties  to  agree  to  it — 

"  The  proposition  made  by  the  honorable  member  for  Liver- 
pool, that  we  should  agree  that  private  property  by 
The  motion.    ^^.^  sliould  be  exempt  from  capture,  was  said  to  be  a 

no  logical  de-  ^  . 

duction  from  lo<ncal  deduction  from  the  declaration  of  Paris.  He 
it. 

denied  that  proposition.      The  declaration  of  Paris 

related  entirely  to  the  relations  between  belligerents  and  neu- 
trals. The  proposition  of  the  honorable  member  related  to  the 
relations  of  belligerents  to  each  other.  The  honorable  member 
for  Birminjjham  had  been  kind  enouojh  to  attach  some  value  to 
opinions  which  he  (Lord  Palmerston)  had  expressed  some  years 

ago  at  Liverpool.*  The  attention  which  he  had 
Liverpool  been  pleased  to  pay,  and  the  weight  which  he  had 
opinions.  h^en  pleased  to  give  to  his  (Lord  Palmerston's) 
opinion,  induced  him  to  hope  that  he  would  with  him  (Lord 
Palmerston)  alter  the  opinion  which  had  been  then  expressed. 
His  opinion,  therefore,  distinctly  was,  that  if  you  give  up  that 
power  which  you  possess,  and  which  all  maritime  states  possess 
and  have  exercised — of  taking  the  ships,  the  property,  and  the 
crews  of  the  nation  with  whom  you  may  happen  to  be  at  war, 
you  would  be  crippling  the  right  arm  of  our  strength.  You 
would  be  inflicting  a  blow  upon  our  naval  power,  and  you  would 

be  guilty  of  an  act  of  political  suicide.     He  hoped 

The  motion  ^jj^  honorable  ffeutleman  would  be  content  with  the 
Buicidal.  o  ^ 

discussion  he  had  raised  on  the  question,  and  with- 
draw his  resolution." 

*  See  supra,  p.  50. 


TO    BE    SAFE    AT    SEA.  81 

Mr.  Disraeli  said  that  b^^  the  declaration  of  Paris 
we  had  ffiveii  up  the  cardinal  principle 

^    .    .  L  L  Mr.  Disraeli's 

of  our  maritime  power —  opinion. 

"  There  is  a  general  impression  that  the  great  change  made  in 
the  maritime  code  may  be,   perhaps  must  be,  the 

,  ,       ^       .  /  '        .      The  new  rule 

cause  01  serious  results  to  the  maritime  power  of  this    astotheneu- 
country.     He  thought  it  not  at  all  a  question  of  the    death-bfow 
shipping  interest  only ;   it  concerns  the  whole  mari-    *"  "^• 
time  strength  of  this  country,  if  it  is  true  that  we  have  acknowl- 
edged the  principle  that  the  flag  of  a  neutral  covers  the  cargo. 
This  must  divert  the  commerce  of  the  country  in  time  of  war 
into  neutral  bottoms;  and  that,  he  believed,  will  have  dealt  a 
serious  blow  to  our  maritime  strength.     It  was  said  that  on  the 
eve  of  war  with  Russia  we  feared  that  the  assertion  of  our  old 
principle  might  involve  us  in  embarrassments  with  the  United 
States.     The  noble  lord  recognized  the  accuracy  of  that  de- 
scription.    How   could  we  maintain  our  system   of 
blockades,  if  we  conceded  the  principle  which  the    The  motion 

'  1  ^  woiud  make 

honorable  mover  recommended '?     If  we  could  not    blockades 

,  ,      ,       ,  .  .  ,  ,  unavailing. 

maintain   our    blockades,   it   was   evident   that   our 
naval  power  must  cease  to  be  aggressive,  and  exist  only  for  pur- 
poses of  defence." 

Mr.   Horsfall,   in  deference  to  the   suggestions 

made  from  both  sides  of  the  House,  with-  „  ^. 

'  Motion  with- 

drew the  motion;  his  object  having  been  ^'■^^"• 

abundantly  attained  by  the  delivery  of  the  pre- 
ceding opinions,  which  came  seasonably,  at  the 
very  moment  when  the  "  chief  points"  had  been 
brought  to  a  close. 


APPENDIX. 


THE  PARIS  "  SOLEMN  DECLARATION," 
April  16,  1856. 

The  plenipotentiaries  who  signed  the  Treaty  of 
Paris  of  the  30th  of  March,  1856,  assem- 

The  Paris  _       '  ,  ' 

declaration,    bled  in  Conference — considering: 

That  maritime  law,  in  time  of  war,  has  long 
been  the  subject  of  deplorable  disputes; 

That  the  uncertainty  of  the  law  and  of  the 
duties  in  such  a  matter,  gives  rise  to  differences  of 
opinion  between  neutrals  and  belligerents,  which 
may  occasion  serious  difficulties,  and  even  con- 
flicts ; 

That  it  is  consequently  advantageous  to  estab- 
lish a  uniform  doctrine  on  so  important  a  point; 

That  the  plenipotentiaries  assembled  in  con- 
gress at  Paris,  cannot  better  respond  to  the  inten- 
tions by  which  their  governments  are  animated, 
than  by  seeking  to  introduce  into  international 
relations  fixed  principles  in  this  respect — 

The  above-named  plenipotentiaries,  being  dulj^ 
authorized,  resolved  to  concert  among  themselves 
as  to  the  means  of  attaining  this  olyect;  and  hav- 
ing come  to  an  agreement,  have  adopted  the  fol- 
lowing solemn  declaration : 

1.  Privateering  is,  and  remains  abolished ; 

2.  The  neutral  flag  covers  enemy's  goods,  with 
the  exception  of  contraband  of  war ; 


THE    PARTS    DECLARATION.  83 

3.  Neutral  goods,  with  the  exception  of  contra- 
band of  war,  are  not  liable  to  capture  under  ene- 
my's flag ; 

4.  Blockades,  in  order  to  be  binding,  must  be 
effective;  that  is  to  say,  maintained  by  a  force 
sufiicient  really  to  prevent  access  to  the  coast  of 
the  enemy. 

The  governments  of  the  undersigned  plenipo- 
tentiaries engage  to  bring  the  present  declaration 
to  the  knowledge  of  the  states  which  have  not 
taken  part  in  the  Congress  of  Paris,  and  to  invite 
them  to  accede  to  it. 

Convinced  that  the  maxims  which  they  now 
proclaim  cannot  but  be  received  with  gratitude  by 
the  whole  world,  the  undersigned  plenipotentiai'ies 
doubt  not  that  the  eftbrts  of  their  governments 
to  obtain  the  general  adoption  thereof  will  be 
crowned  with  full  success. 

The  present  declai^ation  is  not,  and  shall  not 
be  binding,  except  between  those  powers  who  have 
acceded,  or  shall  accede  to  it. 

Done  at  Paris,  the  16th  of  April,  1856. 

(Signed) 

BUOL-SCHAUENSTEIN.  HaTZFELDT. 

HtJBNER.  OrLOFF. 

Walewski.  Brunnow. 

BOURQUENEY.  CaVOUR. 

Clarendon.  De  Yillamarina. 

Cowley.  Aali. 

Manteuffel.  Mehemmed  Djemil. 


8-4  THE  queen's  proclamation. 


THE  QUEEN'S  PROCLAMATION, 
May  13,  1861. 

Victoria  R., 

Whereas  hostilities  have  unhappily  commenced 
between  the  government  of  the  United 

The  Qvieen's       c^ .     ,  i'        a  •  i  j     • 

prociama-  btatcs  01  Amcrica  and  certam  states 
styling  themselves  the  Confederate  States 
of  America ; 

And  whereas  we,  being  at  peace  with  the  gov- 
ernment of  the  United  States,  have  declared  our 
royal  determination  to  maintain  a  strict  and  im- 
partial neutralit}^  in  the  contest  between  the  said 
contending  parties ; 

We,  therefore,  have  thought  lit,  by  and  with 
the  advice  of  our  Privy  Council,  to  issue  this  our 
royal  proclamation  ; 

And  we  do  hereby  strictly'charge  and  command 
all  our  loving  subjects  to  observe  a  strict  neu- 
trality in  and  during  the  aforesaid  hostilities,  and 
to  abstain  from  violating  or  contravening  either 
the  laws  and  statutes  of  the  realm  in  this  behalf, 
or  the  law  of  nations  in  relation  thereto,  as  they 
will  answer  to  the  contrary  at  their  peril. 

And  whereas  in  and  by  a  certain  statute*  made 
and  passed  in  the  59th  year  of  his  majesty  King 
George  III,  entitled  "  An  act  to  prevent  the  en- 
listing or  engagement  of  his  majesty's  subjects  to 
serve  in  a  foreign  service,  and  the  fitting  out  or 

*  59th  Geo,  3,  c.  69. 


THE  queen's  proclamation.  85 

equipping  in  his  majesty's  (lomiiiioiis  vessels  for 
warlike  purposes,  without  his  majesty's  license," 
it  is,  among  other  things,  declared  and  enacted  as 
follows  :* 

Now,  in  order  that  none  of  our  subjects  may 
unwaril}^  render  themselves  liable  to  the  penalties 
imposed  by  the  said  statute,  we  do  hereby  strictly 
command  that  no  person  or  persons  whatsoever 
do  commit  any  act,  matter,  or  thing  wdiatsoever, 
contrary  to  the  provisions  of  the  said  statute,  upon 
pain  of  the  several  penalties  by  the  said  statute 
imposed,  and  of  our  high  displeasure. 

And  we  do  hereby  further  warn  all  our  loving 
subjects,  and  all  persons  whatsoever  entitled  to 
our  protection,  that  if  any  of  them  shall  presume, 
in  contempt  of  this  our  royal  proclamation,  and 
of  our  high  displeasure,  to  do  any  acts  in  deroga- 
tion of  their  duty  as  subjects  of  a  neutral  sover- 
eign, in  the  said  contest,  or  in  violation  or  contra- 
vention of  the  law  of  nations  in  that  behalf;  as  for 
example,  and  more  especially,  by  entering  into  the 
military  service  of  either  of  the  said  contending 
parties  as  commissioned  or  non-commissioned  offi- 
cers or  soldiers ;  or  by  serving  as  officers,  sailors, 
or  marines,  on  board  any  ship  or  vessel  of  war  or 
transport,  of  or  in  the  service  of  either  of  the  said 
contending  parties;  or  by  engaging  to  go  or  going 
to  any  place  beyond  the  seas  wuth  intent  to  enlist 
or  engage  in  any  such  service,  or  by  procuring  or 


*  For  the  verbose  euactments  of  this  act,  see  the  Statute  Book.  Sir 
Roundell  Palmer,  iu  hU  speech,  infnt,  p.  88,  says  ''they  are  suflSciently 
set  out  in  the  title." 


86  THE  queen's  proclamation. 

attempting  to  procure,  within  her  majesty's  do- 
minions at  home  or  abroad,  others  to  do  so;  or  by 
fitting  Qut,  arming  or  equipping  any  ship  or  vessel 
to  be  employed  as  a  ship-of-war  or  privateer  or 
transport,  by  either  of  the  said  contending  par- 
ties; or  b}'  breaking  or  endeavoring  to  break  any 
blockade  lawfully  and  actually  established  b}-  or 
on  behalf  of  either  of  the  said' contending  par- 
ties ;  or  by  carrying  officers,  soldiers,  dispatches, 
arms,  military  stores,  or  materials,  or  any  article 
or  articles  considered  and  deemed  to  be  contra- 
band of  war  according  to  the  law  or  modern  usage 
of  nations,  for  the  use  or  service  of  either  of  the 
said  contending  parties,  all  persons  so  offending 
will  incur  and  be  liable  to  the  several  penalties 
and  penal  consequences  by  the  said  statute,  or  by 
the  law  of  nations,  in  that  behalf  imposed  or  de- 
nounced. 

And  we  do  hereby  declare  that  all  our  loving 
subjects,  and  persons  entitled  to  our  protection, 
who  may  misconduct  themselves  in  the  premises, 
will  do  so  at  their  peril  and  of  their  own  wrong, 
and  that  they  will  in  nowise  obtain  any  protec- 
tion from  us  against  any  liabilities  or  penal  con- 
sequences, but  will,  on  the  contrary,  incur  our 
high  displeasure  by  such   misconduct. 

Given,  etc.,  13th  May,  1861. 

God  Save  the  Queen. 


ON    THE    queen's    PROCLAMATION.  87 


SIR  ROUNDELL   PALMER'S   SPEECH   ON   THE    EF- 
FECT  OF   THE    QUEEN'S   PROCLAMATION* 

The  O'Donoghue  moved  for  returns  of  the  num- 
ber of  vessels  tliat  had  during  the  past 
six  months  brol^en   the  blockade  of  the    i>aimpVon 
southern    ports    of   America.      He    com-    piociHma" 
plained  that  the  British  garvernment  had 
not  taken  steps  to  prevent  breaches  of  that  block- 
ade, which  was  not  in  his  opinion,  to  be  held  inef- 
fective merely  because  the  Americans  "had    not 
been  able  to  accomplish  an  impossibility,  viz :  the 
hermeticall}^  sealing  of  3,000  miles  of  coast."    The 
honorable  mover  further  insisted  that  the  govern- 
ment ought  to  enforce  the  Queen's  proclamation 
against  furnishing   the  belligerents  with  articles 
contraband  of  war. 

Sir  Roundell  Palmer  (solicitor-general):  I  think 
it  desirable  that  a  few  words  should  be  said  to  cor- 
rect a  total  misapprehension  of  a  matter  of  law, 
into  which  the  honorable  gentleman  opposite  has 
fixllen.  He  implies,  by  the  terms  of  his  notice  of 
motion,  and  more  distinctly  stated  in  his  speech, 
that  all  masters  of  British  merchant  vessels  who 
may  have  run  the  blockade  with  articles  contra- 
band of  war  on  board  have  been  guilty  of  illegal 
acts,  in  violation  of  her  majesty's  proclamation, 
which  the  government  of  this  country,  having 
their  attention  called  to  them,  ought  to  have  in- 

*  Revised.      Times,  2lst  February,  1862. 


88  SIR    ROUNDELL    PALxMER 

terfered  to  prevent,  but  bad  not  done  so.  He  bas 
also  suggested  tbat  tbe  autborities  of  tbe  port  of 
Nassau  must  be  subject  to  serious  blame  for  liav- 
ing  permitted  sbips  under  similar  circumstances 
to  call  at  tbat  port  and  to  take  in  supplies,  and  to 
bave  tbe  benefit  of  calling  and  remaining  tbere 
wben  tbey  bad  on  board  articles  contraband  of 
war,  wbicb  tbe  bonorable  gentlemen  seemed  to 
supposeatbat  ber  majesty's  proclamation  bad  made 
it  illegal  for  tbem  to  bave  on  board,  and  wbicb 
tberefore  tbey  could  not  be  permitted  to  carry 
witbout  a  violation  of  neutralit}'.  In  all  tbese 
respects  tbe  bonorable  gentleman  bas  totally  mis- 
understood tbe  law.  Tbis  country  is  governed  by 
law,  and  except  as  far  as  ber  majesty's  govern- 
ment bave  powers  by  law  to  control  tbe  action  of 
private  Britisb  subjects,  wbetber  masters  of  sbips 
or  otbers,  of  course  tbey  are  perfectly  powerless 
in  tbe  matter.  Tbe  only  law  wbicb  enables  ber 
majesty's  government  to  interfere  in  sucb  cases  is 
tbat  commonly  called  tbe  foreign  enlistment  act, 
and  tbe  wbole  nature  and  scope  of  tbat  act  is  suf- 
ficiently and  sbortly  set  out  in  tbe  title.  It  is  "an 
act  to  prevent  tbe  enlistment  and  engagement  of 
ber  majesty's  subjects  to  serve  in  foreign  service, 
and  tbe  fitting  out  or  equipping  in  ber  majesty's 
dominions  vessels  for  warlike  purposes  witbout 
ber  majesty's  license."  Tbat  act  does  not  toucb 
in  any  way  wbatever  private  mercbant  vessels, 
wbicb  may  carry  cargoes,  contraband  or  not  con- 
traband, between  tbis  country  or  any  of  tbe  do- 
minions of  ber  majest}^  and   an}-  port   in   a  bel- 


ON    THE    queen's    PROCLAMATION.  89 

lio^ereiit  country,  whether  under  hlockade  or  not; 
and  the  government  of  this  country,  and  the 
governments  of  our  colonial  possessions,  have  no 
power  whatever  to  interfere  with  private  vessels 
under  such  circumstances.  It  is  perfectly  true 
that  in  the  Queen's  proclamation  there  is  a  gen- 
eral warning,  addressed  to  all  the  Queen's  suh- 
jects,  that  they  are  not,  either  in  violation  of  their 
duty  to  the  Queen  as  suhjects  of  a  neutral  sover- 
eign, or  in  violation  and  contravention  of  the  law 
of  nations,  to  do  various  things,  one  of  which  is 
carrying  articles  considered  and  deemed  to  he 
contraband  of  war  accordinsc  to  law  or  the  mod- 
ern  '  usages  of  nations,  for  the  use  or  service  of 
either  of  the  contending  parties.  That  warning 
is  addressed  to  them  to  apprise  them  that  if  they 
do  these  things  they  will  have  to  undergo  the 
penal  consequences  hy  the  statute  or  by  the  law" 
of  nations  in  that  behalf  imposed  or  denounced. 
In  those  cases  in  which  the  statute  is  silent,*  the 
government  are  powerless,  and  the  law  of  nations 
comes  in.  The  law  of  nations  exposes  such  per- 
sons to  have  their  sliips  seized  and  their  goods 
taken  and  subjected  to  confiscation,  and  it  further 
deprives  them  of  the  right  to  look  to  the  govern- 
ment of  their  own  country  for  any  protection. 
And  this  principle  of  non-interference  in  things 
which  the  law  does  not  enable  the  government  to 
deal  witli,  so  far  from  being  a  violation  of  the 
duty   of  neutrality  —  which    the   government   are 

*  The  statute  is  ,«ilent  as  to  contniliand  ari'l  Itlookadc. 


90  SIR    ROUNDELL   PALMER 

sincerely  anxious  to  comply  with  —  is  in  accord- 
ance with  all  the  principles  which  have  been  laid 
down  by  jurists,  and  more  especially  by  the  great 
jurists  of  the  United  States  of  America.  In  order 
that  the  honorable  gentleman  may  understand 
exactly  how  the  case  stands,  I  may  be  permitted 
to  read  a  short  passage  from  one  of  the  works 
of  these  writers.  Wheaton,  who,  as  everybody 
knows,  has  written  one  of  the  most  valuable 
treatises  on  the  subject  that  ever  was  composed 
says  — 

*' It  is  not  the  practice  of  nations  to  undertake 
to  prohibit  their  own  subjects,  by  previous  laws, 
from  traftickino:  in  articles  contraband  of  war. 
Such  trade  is  carried  on  at  the  risk  of  those  en- 
gaged in  it,  under  the  liabilities  and  penalties 
prescribed  by  the  law  of  nations,  or  particular 
treaties." 

Wheaton  then  goes  on  to  justify  the  conduct  of 
the  United  States  in  not  interfering  to  prevent  the 
supply  of  arms  to  Texas,  then  at  war  witlt  Mexico, 
and  says — 

"The  government  is  not  bound  to  prevent  it, 
and  could  not  have  prevented  it  without  a  mani- 
fest departure  from  the  principle  of  neutrality,  and 
is  in  no  way  answerable  for  the  consequences." 

Chancellor  Kent,  in  his  scarcely  less  admirable 
work,  says  — 

."It  is  a  general  understanding  that  the  powers 
at  war  may  seize  and  contiscate  all  contraband 
goods,  without  any  complaint  on  the  part  of  the 
neutral  merchant,  and  without  any  imputation  of 


ON  THE  queen's  proclamation.  91 

a  breach  of  neuti-ality  in  the  neutral  sovereign 
himself.  It  was  contended,  on  the  part  of  the 
French  nation  in  1796,  that  neutral  governments 
were  bound  to  restrain  their  subjects  from  selling 
or  exporting  articles  contraband  of  war  to  the  bel- 
ligerent powers.  Bat  it  was  successfully  shown, 
on  the  part  of  the  United  States,  that  neutrals 
may  lawfully  sell  at  home  to  a  belligerent  pur- 
chaser, or  carry  themselves  to  the  belligerent 
powers  contraband  articles,  subject  to  the  right 
of  seizure  m  transitu.  This  right  has  since  been 
explicitly  declared  by  the  judicial  authorities  of 
this  country.  The  right  of  the  neutral  to  trans- 
port, and  of  the  hostile  power  to  seize,  are  con- 
flicting rights,  and  neither  party  can  charge  the 
other  with  a  criminal  act." 

I  think,  therefore,  it  is  very  clear  that  the  gov- 
ernment at  home,  and  the  colonial  authorities  at 
I^assau,  have  taken  the  only  course  which  it  was 
possible  to  take  consistently  with  the  law  of  the 
land,  which  they  were  bound  in  any  case  to  fol- 
low, or  with  the  recognized  principles  and  cus- 
toms of  international  law,  and  more  especially 
with  those  principles  and  customs  as  recognized 
and  acted  upon  by  the  United  States  themselves. 

8 


92  THE  queen's  waiver. 

THE   QUEEN'S   WAIVER   OF  RIGHT   ON   THE   EYE 
.OF   THE   RUSSIAN   WAR,   28th  MARCH,   1854. 

Her  majesty,  the  Queen  of  the  united  kingdom 
of    Great   Britain    and   Ireland,    having 

The  Queen's    i  n      t     i        j     i 

waiver  as  to  been  Compelled  to  take  up  arms  in  sup- 

neutral    flag.  ,        /?  n         •        j       •  v  i       • 

port  01  an  ally,  is  desirous  or  rendering 
the  war  as  little  onerous  as  possible  to  the  powers 
with  whom  she  remains  at  peace. 

To  preserve  the  commerce  of  neutrals  from  all 
unneccessary  obstruction,  her  majesty  is  willing, 
for  the  present,  to. waive  a  part  of  the  belligerent 
rights  appertaining  to  her  by  the  law  of  nations. 

It  is  impossible  for  her  majesty  to  forego  her 
right  of  seizing  articles  contraband  of  war,  and  of 
preventing  neutrals  from  bearing  the  enemy's  dis- 
patches;  and  she  must  maintain  the  right  of  a 
belligerent  to  prevent  neutrals  from  breaking  any 
effective  blockade  which  may  be  established  with 
an  adequate  force  against  the  enemy's  forts,  har- 
bors, or  coasts.     , 

But  her  majesty  will  waive  the  right  of  seizing 
enemy's  property  laden  on  board  a  neutral  vessel, 
unless  it  be  contraband  of  war. 

It  is  not  her  majesty's  intention  to  claim  the 
confiscation  of  neutral  property,  not  being  con- 
traband of  war,  found  on  board  enemy's  ships ; 
and  her  majesty  further  declares,  that  being  anx- 
ious to  lessen  as  much  as  possible  the  evils  of  war 
and  to  restrict  its  operations  to  the  regularly  or- 
ganized forces  of  the  country,  it  is  not  her  pres- 
ent intention  to  issue  letters  of  marque  for  the 
commissioning  of  privateers. 


ON    THE    NEUTRAL    FLAG.  93 


SIR  WILLIAM  MOLESWORTH'S   SPEECH   ON 
THE   NEUTRAL   FLAG.* 

On  the  4tli  July,  1854,  Sir  William  Molesworth 
delivered,  in  the  House  of  Commons,  a 

,  ,  'Sir  William 

most    learned   and   powerful    sDeech    in    ^i^'iesworth 

^  ^  on  neutral 

support  of  the  maxim,  "free  ships  make    "''^• 
free  goods."     He  sho^ved  that  the  opposite  rule  of 
the  Consolato  del  Mare  was  early  and  largely  dis- 
sented from.     '^At  various  times,"  said  Sir  Wil- 
liam, f    ''the  great   majority  of  European   states 
have  been  induced  to  condemn  the  rule  of  cap- 
turing enemy's  goods  on  board  neutral  ships,  and 
to  expunge  that  rule  from  the  public  law  of  Eu- 
rope.    The  first  English  treaty  which  contains  the 
principle  'free  ships,  free  goods'  was  that  of  West- 
minster, in  1654,  between  the  King  of  Portugal  and 
Oliver  Cromwell.     It  continued  in  force  till  1810, 
that  is  for  156  years.     In  1655,  the  lord  protector 
concluded  a  similar  treaty  with  Louis  XIY.    How 
long  it  continued  in  force  I  am  unable  to  say,  but 
in  1677  the  rule  'free  ships,  free  goods'  was  in- 
serted in  the  treaty  of  St.  Germain  en  Laye,  and 
was  the  rule  of  our  amicable  relations  with  France 
for  the  next  116  years.     From  1677  till  1793  the 
all  but  invariable  rule  of  our  friendly  intercourse 
with  France  was  that  free  ships  should  give  free- 
dom  to   goods.     The   first   of  our   treaties   with 


*  Abridged  from  Hansard. 

t  Replying  to  Mr.  John  George  Phillimore. 


94  SIR    WILLIAM    MOLESWORTH 

Spain  which  contained  this  principle  was  that  of 
1665.  From  that  period  till  1796,  thirteen  treat- 
ies were  concluded  with  Spain,  in  every  one  of 
which  there  is  an  article  which  either  expressly 
declares  that  free  ships  shall  give  freedom  to 
goods,  or  renews  a  treaty  which  contains  that  posi- 
tion. In  our  treaties  with  the  IFnited  Provinces 
the  invariable  rule  of  our  intercourse  from  1667 
to  1780  was,  that  the  ships  of  the  United  Provin- 
ces should  make  free  the  goods  of  the  enemies  of 
England.  The  treaties  between  England  and  the 
great  maritime  powers  of  Western  Europe  show 
that  between  1654  and  1793  the  all  but  invariable 
rule  was  'free  ships,  free  goods.'  I  must,  how- 
ever, admit  that  the  theory  of  the  great  maritime 
powers  as  expressed  in  treaties  was  at  variance 
with  their  practice  during  war.  The  reason  is 
obvious.  During  peace  men's  minds  have  a  ten- 
dency to  conform  to  what  ought  to  be  the  rule 
of  international  law.  But  in  war  passion,  hatred, 
and  seeming  necessity  and  the  fancied  interest  of 
the  moment  are  apt  to  determine  the  actions  of 
powerful  belligerents  who,  often  relying  on  their 
might,  set  at  defiance  the  best  established  rules  of 
war.  Every  one  of  the  great  maritime  powers  has 
repeatedly  treated  neutrals  as  subjects  ;  and  has 
confiscated  not  only  enemy's  goods  on  board  neu- 
tral ships,  but  neutral  ships  for  containing  ene- 
my's goods,  and  has  even  prohibited  all  neutral 
commerce  with  enemies.  I^or  has  this  country 
shown  greater  respect  than  our  neighbors  for  the 
rights  of  neutrals.     Bj^  means  of  fictitious  block- 


ON    THE    NEUTRAL    FLAG.  95 

ades  we  have  repeatedly  claimed  the  right  of 
stopping  the  trade  of  neutrals  with  our  enemies. 
I  must  acknowledge  the  rule  free  ships,  free 
goods,  is  not  contained  in  some  of  the  treaties 
between  the  northern  and  western  powers.  But 
I  have  shown  that  the  general  rule  of  amicable 
intercourse,  as  established  by  treaty  between  the 
northern  and  western  powers,  with  the  exception 
of  England  —  between  the  United  States  and  the 
old  and  the  new  world,  and  between  the  Ottoman 
Porte  and  the  great  powers  of  Europe  was  free 
ships,  free  goods.  I  am,  therefore,  entitled  to  as- 
sert that  though  it  has  been  the  usage  to  act  upon 
the  rule  of  capturing  enemy's  goods  on  board  neu- 
tral ships,  yet  that  usage  has  been,  and  still  is 
held  by  the  great  majority  of  civilized  nations  to 
be  at  variance  with  correct  notions  of  what  is 
right  and  just.  It  is  said  that  the  fact  that  so 
many  treaties  contain  the  rule  free  ships,  free 
goods,  and  , so  few  the  rule  of  confiscating  enemy's 
goods  on  board  neutral  ships  proves  that  the  lat- 
ter rule  was  the  general  rule  of  public  law.  The 
friends  of  the  extension  of  neutral  rights  do  not 
deny  that  this  was  the  general  rule  of  the  public 
law  of  England,  and  of  many  other  nations. 
They  merely  assert  that  it  ought  not  to  be  the 
rule  of  international  law,  and  that  it  is  contrary 
to  the  opinions  of  the  majoritj^  of  civilized  na- 
tions." 


IINTDEX. 


PAOB 

A  d  libitum  doctrine  of  contraband  25 

Afghanistan,  destruction  of  fruit  trees  in 4 

Alexander,  the  Czar,  defensive  destruction  of  property  by 7 

American  Colonies,  rebellion  of 15 

American  war,  regularity  of 15 

Arbitration — See  Mediation. 

Arms,  etc.,  whether  war  is  prolonged  by 20 

Asylum  given  by  neutrals  to  belligerents 17 

Atherton,  Sir  W.,  as  to  immunity  to  private  property 62 

Attorney-General — see  Atherton,  Sir  W. 

Bajazet,  a  prisoner  of  war 6 

Baring,  Mr.  T.,  M.  P.,  immunity  to  private  property  at  sea 66 

Belligerents  in  their  enemy's  country — (see  Table  of  Contents,  sec.  i)     1 
in  their  own  country — (see  Table  of  Contents,  sec.  ii).      7 

at  sea — (see  Table  of  Contents,  sec.  iii) 9 

Belligerents  and  Neutrals — (see  Table   of  Contents,  sec.  iv) 14 

Bentinck,  Mr.,  M.  P.,  as  to  immunity  to  private  property 72 

Blockades — (see  Table  of  Contents,  sec.  vi) 27 

Paris  declarations  as  to 51 

Queen's  proclamation  as  to 51 

Bowyer,  Sir  G.,  M.  P.,  as  to  immunity  to  private  property 63 

Brienne,  General,  at  the  siege  of  Almeida 4 

Bright,  Mr.,  M.  P.,  as  to  immunity  to  private  property 72 

Brougham,  Lord,  as  to  shortening  wars  by  early  severities 2 

the  burning  of  Joan  of  Arc   (note) 6 

the  origin  of  law  of  nations  (nole) 29 

Brune,  Marshal,  as  to  destruction  of  the  Dutch  dikes 3 

Burke,  Mr.,  as  to  the  treatment  of  a  conquered  province,  etc 3 

as  to  defence  of  towns 9 

Buxton,  Mr.,  M.  P.,  immunity  to  private  property 70 

Byukershoek,  as  to  the  treatment  of  prisoners 6 


98  INDEX. 

PAOB 

Captors,  encouragement  to 41-43 

Cave,  Mr.,  as  to  immunity  to  private  property 69 

Changes  in  the  mariti  le  law  of  nations  —  (see  Table  of  Contents, 

sec.  viii  and  ix) 44 

Charleston  stone  fleet 5 

Children,  consideration   for,  during  war 5 

Civil  law  not  the  foundation  of  the  law  of  nations 28 

Cochrane,  Mr.  B.,  as  to  immunity  to  private  property 63 

Cnmmittee  of  Commons  as  to  immunity  of  private  property 58 

Commons,  House  of,  present  state  of  sentiment  in,  as  to  immunity 
to  private  property  at  sea  during  war— (see  Table  of  Con- 
tents, sec.   x) 61 

Opinion  of  Committee  of 58 

Contraband  of  war — See  Table  of  Contents,  sec.  v. 

Its  principle  examined 19-22 

Costs  and  damages  when  given  to  neutrals 41 

when  awarded  against  captors,  u>!ually  paid  by 

government 42 

Crimea,  the  war  in 4-5 

Danger,  the  test  of  efficiency  of  blockade 32 

Declaration  of  Paris,  1856,  does  not  define  contraband 25 

silent  as  to  stoppage  and  seamh 25 

See  Table  of  Contents,  sec.  viii. 

Defence  of  towns 8 

Derby,  Lord,  as  to  binding  force  of  the  Declaration  of  Paris 45 

Diebitsch,  Count,  his  conduct  in  Roumelia  in  1829 2 

Disraeli,  Mr.,  a:«  to  immunity  to  private  property 81 

Ediiibaryh  Review  quoted,  as  to  Lord  Stowell 37,  38 

Ellenborougb,  Lord,  as  to  contraband 23 

Fire-arms,  etc.,  do  they  prolong  war  ? 20 

Fishing-boats  of  enemy 12 

Fortified  town,  defence  of 8 

Forts,  etc.,  whether  they  may  be   destroyed  during  war 4 

**  Free  ships,  free  goods,"  established  by  the  Declaration  of  Paris..   47 

Sir  W.  Moleswortb's  speech  as  to 93 

Goldsmidt,  Sir  F.,  as  to  immunity  to  private  property 69 

Gower,  Mr.,  as  to  immunity  to  private  property 69 

Granville,  Earl,  as  to  contraband 23 

Declaration  of  Paris 46 

the  adoption  of  the  maxim  "Free  ships,  free 

goods  " 51 

Gulliver,  advice  of,  to  the  King  of  Brobdignag  (note) 22 


INDEX.  99 

PAGE 

Harbors  may  not  always  be  closed  by  owners 8 

Hautefeuille,  M.,  as  to  deeming  wars  just  (note) 16 

the  freedom  of  enemy's  goods  under  neutral 

flag 48 

JIawkwood,  Sir  John 8 

Hobbes   (note) 39 

Horner,  Mr.,  his  opinion  of  Lord  Stowell 39 

Horsfall,  Mr.,  M.  P.,  his  motion  as  to  private  property  at  sea 61 

Hume,  David,  as  to  gunpowder 21 

Italian  war  of  1859,  respect  to  private  property 3 

Intermission   of  blockade 33 

Jacopo  del  Verme,  destruction  of  the  dikes  of  the  Adige  by 8 

Joan  of  Arc  (note) 6 

Just  war,  what  must  be  so  deemed 16 

Kent,  Chancellor,  as  to  difference  between  land  and  sea  warfare. . .    11 

Kingsdown,  Lord,  as  to  contraband 23 

encouragement  to  captors 43 

costs  and  damages  to  neutrals 44 

Law  of  nations  characterized 1 

Lawi'ence,  Mr.,  as  to  Lord  Stowell 40 

Leniency  and  forbearance  on  land  now  enjoined  on  belligerents  — 

not  so  at  sea 2 

Lewis,  Sir  (x.  C,  as  to  immunity  to  private  property 65 

Licenses  to  trade  with  enemy  (note) 55 

Liddell,  Mr.,  as  to  immunity  to  private  property 63 

Lindsey,  Mr.,  as  to  do.  66 

Lord  Advocate — (see  Moncrieff,  Mr.) 

Louis  XIV,  his  destruction  of  the  Dutch  dikes 4 

his  treatment  of  prisoners 5 

Low  Countries,  revolt  of,  against  Spain 4 

Lushington,  Dr.,  as  to  costs  and  damages  to  neutrals 42 

as  to  destruction  of  enemy's  merchant  vessels....   10 
Maritime  law  of  nations,  license  given  by  it  for  plunder  (see  the 

Table  of  Contents,  sec.  iii) 9 

Maritime  law  of  nations,  its  partiality  to  belligerents 19 

late  changes  in — (see  Table  of  Contents, 

sec.   viii) 'I'i 

proposed  changes  in  —  (see  Table  of  Con- 
tents, sec.  ix) 61 

Massey,  Mr.,  a  passage  in  his  history  considered 15 

as  to  right  of  searching  ships  under  convoy  (note). .   40 
as  to  immunity  to  private  property  during  war 71 

y 


100  CONTENTS. 

PAOK 

Mediatiou,  protocol  as  to  (note) 58 

Medicinal  plants  deemed  contraband ► 24 

Merchants'  opinions  as  to  immunity  to  private  property 58 

Molesworth,  Sir  W.,  speech  on  the  neutral  flag 98 

Moncrieff',  Mr.,  as  to  immunity  to  private  property 67 

Napoleon  I,  as  to  immunity  to  private  property 55 

Napoleon  III '6 

Nations,    law    of.       See    Law    of  Nations,    Maritime    Law    of  Na- 
tions,  etc. 

Neutrals,  position  of,  during  war  —  (see  Table  of  Contents,  sec.  iv).  16 

must  hold  regular  war  just .16 

asylum  granted  by,  to  belligerent  vessels 17 

must  not  assist  belligerents 19 

may  trade  with  them 19 

restriction 20 

ships  of,  liable  to  stoppage  and  search — (see   Table  of 

Contents,  sec.  v)   22 

costs  and  damage  to 41 

Neutrals  and  belligerents — (see  Table  of  Contents,  sec.  iv) 14 

Neutral  goods  under  enemy's  flag  exempted  from  capture  by  the 

Paris  declaration 51 

Newdegate,  Mr.,  as  to  immunity  to  private  property 70 

Northcote,  Sir  S.,  as  to  immunity  to  private  property 67 

Odessa,  bombardment  of 4 

supposed  case  as  to 8 

Orders  in  Council  bind  the  Prize  Court .37-40 

of  1807 38 

Palmer,  Sir   Eoundell,  as  to  blockades 32 

speech  as  to  immunity  to  private  property 

at  sea 74 

speech  as  to  the  Queen's  proclamation 87 

Palmerston,  Lord,  as  to  the  maxim  "  Free  ships,  free  goods  " 49 

Palmerston,  Lord,  as  to  proposed  immunity  to  enemy's  merchant 

ships 54,  56,  SO 

Paper  Blockades 30 

Paris   Declarations.     See  Declaration  of  Paris  and  Table  of  Con- 
tents, sec.  viii. 

Peter  the  Great,  defensive  destruction  of  property  by 7 

Phillimore,  Dr.,  as  to  the  Orders  in  Council  of  1807 38 

Prisoners  of  war 6 

Privateering  abolished  by  the  Paris  declaration 46 

not  by  the  United  States 46 


CONTENTS.  101 

PAGE 

Prize,  becomes  the  captors' 43 

as  a  mode  of  remuneration 34 

Prize  court  bound  to  obey  one  of  the  litigants  before  it 37,  40 

Prize  jurisdiction — (see  Table  of  Contents,  sec.  vii) 35 

Proclamation  of  the  Queen  as  to  contraband 22 

as  to  blockades 27,  31 

set  out 87 

Property  of  enemy  on  land  how  treated 2 

at    sea,   low   treated — (see   Table  of   Contents, 

sec.   iii) 10 

Proposal   that   it  should  not  be  liable   to  cap- 
ture— (see  Table  of  Contents,  sec.  ix) 52 

Protocol  as  to  Mediation  (note) 53 

Provisions,  when  contraband 22,  23 

Quasi-contraband 24 

Regular  war  must  be  deemed  just ;    qrnvre  16 

Revival  of  blockade 33 

Roman  law  not  the  foundation  of  the  law  of  nations  (note) 28 

Russell,  Earl,  as  to  Paris  declaration 45 

as  to  immunity  to  enemy's  private  property      59 

Sarrazin,  General,  as  to  destruction  of  Fort  of  Almeida .  5 

Scott,  Sir  William.     See  Stowell,  Lord. 

Search 25 

Solferino,  the  battle  of 6 

Solicitor-General.     See  Palmer,  Sir  Roundell. 

Spain,  revolt  of  Low  Countries  against 14 

Stoppage  to  search  for  contraband 25 

to  ascertain  national  character 26 

Stowell,  Lord,  his  position  and  conduct  characterized 38 

his  judgments  as  to  prize  jurisdiction  contrasted.  .35-38 

revision  of  judgments  by  (note) 24 

his  rules  as  to  costs  and  damages  to  neutrals 41 

corrected  by  Privy  Council 43 

as  to  when  enemy's  property  may  be  destroyed 10 

as  to  enemy's  fishing-boats 12 

as  to  contraband 24 

as  to  blockade 30 

Story,  Mr.  Justice,  as  to  blockade 31 

Timour 6 

Towns,  mercantile,  defence  of 9 

fortified,  defence  of 9 

Trade  between  neutrals  and  belligerents 19 


102  CONTENTS. 

PAGE 

Vane,  Lord  H.,  as  to  immunity  to  private  property 70 

Vattel,  as  to  leniency  in  war 2 

as  to  conduct  of  belligerents  in  their  own  country 7 

as  to  deeming  wars  just  (note) 16 

Visitation.     See  S  oppage. 

Voltaire,  as  to  destruction  of  the  Dutch  dikes  by  Louis  XIV 4 

Waiver,  by  the  Queen,  of  right,  on  eve  of  the  Russian  war,  set  out..  ^2 

Walpole,  Mr.,  as  to  immunity  to  private  property 79 

War,-  modern  practice  of,  diffei-ent  from  ancient 1 

what  property  respected  during 4 

must  be  regular  to  give  belligerent  rights 14 

if  regular,  whether  to  be  deemed  just 16 

Wellington,  Duke  of,  his  respect  for  private  property  in  war 2 

Wheaton,  Mr.,  his  remarks  as  to  Lord  Stowell 40 

William  the  Silent,  defensive  destruction  of  property  by 7 

Women,  consideration  for,  during  war 5 

York,  Duke  of,  proposed  destruction  of  the  Dutch  dikes  by 3 


^P^' 


